U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Melina K.,1 Complainant, v. James N. Mattis, Secretary, Department of Defense (Defense Information Systems Agency), Agency. Appeal No. 0120152834 Agency No. DOD-DISA-12-005 DECISION On August 24, 2015, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency's July 27, 2015, final decision concerning her entitlement to compensatory damages pursuant to the Commission's finding that the Agency subjected Complainant as alleged in 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Information Technology (IT) Specialist, GS-12, at the Agency's Policy, Compliance, and Governance Division, Office of the Chief of Information Officer (OCIO), in Fort Mead, Maryland. The Agency's Branch Chief, GS-14, served as Complainant's first-level supervisor (S1) and the Division Chief served as Complainant's second-level supervisor (S2). On December 5, 2011, Complainant filed an EEO complaint alleging, as amended, that the Agency subjected her to hostile work environment harassment on the bases of disability and reprisal for prior protected EEO activity. In support of her claim, Complainant cited to a number of incidents that occurred between June 2011 and February 2012. At the conclusion of the investigation into her complaint, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge. When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded in its decision that Complainant failed to prove that she was subjected to discrimination as alleged. Complainant appealed the Agency's final decision. In EEOC Appeal No. 0120140624 (May 21, 2015), the Commission found that Complainant failed, in large part, to establish her hostile work environment claim. However, the Commission determined that Complainant was subjected to unlawful retaliation when: 1. she was verbally reprimanded by S1 in front of her coworkers for filing an informal EEO complaint; and 2. She was "confronted" by S1 and S2 about filing an EEO complaint. To remedy Complainant for the unlawful retaliation she experienced, the Commission ordered the Agency to conduct a supplemental investigation on the issue of Complainant's entitlement to compensatory damages and issue a final decision regarding Complainant's entitlement to compensatory damages. The decision also ordered the Agency to conduct training for S1 and S2; to consider disciplinary action for S1 and S2; and to post a notice regarding the finding of unlawful retaliation. Complainant requested reconsideration on that portion of the Commission's decision finding no discrimination. Complainant's request was denied by the Commission's decision in EEOC Request No. 0520150433 (Nov. 25, 2015). The Agency conducted its supplemental investigation into the issue of compensatory damages. Complainant provided her own affidavit seeking $125,035, an affidavit from her husband and documentation from her physicians. Complainant asserted that she sustained losses to her professional reputation which she believed cost her $100,000. She then asserted that she was denied promotions and, as a result, loss of income. Complainant also requested reimbursement for medical bills totaling $6,000, which she asserted had not been paid by the Office of Worker's Compensation Program (OWCP). Complainant also asserted that she spent two years in therapy costing approximately $18,200.00 and $ 835.00 for a report from her physicians. Complainant indicated that after the encounters with management over her EEO activity, she felt intimidated, stressed, depressed, mentally unfocused, and suspicious. She stated that the retaliation affected her relationship with her husband and that her husband was tired of hearing about the matter. Complainant asserted that she gained 40 pounds, suffered hair loss and had to see a dermatologist. In support, Complainant's husband provided an affidavit stating that Complainant had fallen at work and had a concussion in July 2011. He noted that management gave her a hard time about appointments and that she was confronted by S1 and S2 in September 2011. He indicated that she cried and was visibly upset. He also stated that she gained weight, could not sleep, experienced headaches, and lost her hair. He also commented that there was a strain on the marriage. Complainant's physicians also provided statements in support. Physician 1 stated that Complainant suffered from Post-Traumatic Stress Disorder and that the events that led up to the filing of the complaint and the retaliation caused exacerbation of Complainant's mental health issues. Physician 2 stated that Complainant experienced emotional distress that was heightened over the past four years and noted that her weight gain was exacerbated by pain related to her previous injuries. He also noted that Complainant demonstrated clinical levels of distress. He said Complainant explained to him some of the sources of stress and anxiety for example she was given duties for which she was overqualified. Physician 2 stated that Complainant's conditions have worsened over the last six months. The Agency issued its final decision based on the supplemental investigation. The Agency denied Complainant's request for compensation for loss of opportunity to be promoted finding that such a request was too speculative. The Agency awarded Complainant $10,000 in non-pecuniary damages. The Agency noted in its decision that, after October 2012, S1 and S2 were no longer Complainant's supervisors. The Agency found that Complainant established that she incurred emotional pain and loss of enjoyment of life due to the retaliation. The Agency held that Complainant failed to isolate the distress caused by the retaliation from the other incidents raised in her complaint. Further, the statements by the physicians noted weight gain and worsening of symptoms in the last six months from June 2015, while the retaliation occurred in September 2011. The Agency found that Complainant failed to connect the harm experience in 2015 to the events on one day in 2011. As to Complainant's hair loss, Complainant's evidence showed that it occurred in September 2013, two years after the unlawful retaliation. As such, the Agency held that Complainant failed to connect the hair loss to harm experience due to the retaliation. Based on the evidence provided by Complainant and the Commission's case precedent, the Agency found that $10,000 was an appropriate award for non-pecuniary damages. The Agency then turned to Complainant's claim for pecuniary damages. The Agency noted that the request for $6,000 was related to her fall, not the finding of unlawful retaliation. Therefore, the Agency denied that request. Complainant also requested $18,200 in future pecuniary damages for two years of therapy as stated by Physician 1. However, the Agency noted that Complainant failed to provide any evidence to support a basis for such a request. In addition, the Agency noted that Physician 1's statement was vague as to the whether this was directly related to the unlawful retaliation. Finally, Complainant requested $ 835 for the documents prepared by Physician 1 and Physician 2. The Agency noted that Complainant did not provide documentation for this expense. Therefore, the Agency denied this amount as well. Finally, the Agency addressed Complainant's request for fees and costs related to the work by her attorney (Attorney) regarding compensatory damages. The Agency noted that the only evidence provided to support the request for $11,390 was an email from the Attorney with this amount. The Agency stated that this failed to meet the criteria necessary to calculate fees and costs for the Attorney. Therefore, the Agency denied the request. This appeal from Complainant followed. ANALYSIS AND FINDINGS Legal Standards for an Award of 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. In Carle v. Dep't of the Navy, the Commission explained that "objective evidence" of non-pecuniary damages could include a statement by the complainant explaining how he or she was affected by the discrimination. EEOC Appeal No. 01922369 (Jan. 5, 1993). Statements from others, including family members, friends, and health care providers could address the outward manifestations of the impact of the discrimination on the complainant. Id. The complainant could also submit documentation of medical or psychiatric treatment related to the effects of the discrimination. Id. Non-pecuniary damages must be limited to the sums necessary to compensate the injured party for the actual harm and should take into account the severity of the harm and the length of the time the injured party has suffered from the harm. Carpenter v. Dep't of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995). Non-Pecuniary Damages We find that Complainant has provided support that she is entitled to non-pecuniary damages. We note that she and her husband provided statements indicating that she was emotionally harmed by the retaliatory acts committed by S1 and S2. Complainant also provided medical documentation to support her assertions. We note that there were inconsistencies between Complainant's medical documents and her statements. For example, the medical documentation stated that Complainant's weight gain and hair loss occurred in the last six months of the report from 2015 which is nearly 4 years after the unlawful retaliation. The Investigator sought clarification from Complainant on the inconsistency. The Attorney provided a response on Complainant's behalf. We note that the response by the Attorney was in an email, not by Complainant and not in the form of an affidavit. Taking into account the evidence of non-pecuniary damages submitted by Complainant, we find her request of $150,000 to $200,000 to be excessive. Rather, the Commission finds that the Agency properly concluded that Complainant is entitled to non-pecuniary damages in the amount of $ 10,000. This amount takes into account the severity of the harm suffered, and is consistent with prior Commission precedent. See Harrison v. U.S. Postal Serv., EEOC Appeal No. 01A14848 (March 22, 2002) (award $ 8,000 in retaliatory harassment case where Complainant felt humiliated, embarrassed, anxious, angry, and a psychiatrist diagnosed Major Depression); Thompson v. U.S. Postal Serv., EEOC Appeal No. 01A02660 (Dec. 30, 2002), request for reconsideration denied, EEOC Request No. 05A30433 (March 20, 2003) (awarding $10,000 where Complainant was denied overtime and issued letter of warning in retaliation and established that it caused humiliation, embarrassment, headaches and difficulty sleeping. Complainant submitted statements from a psychologist and counselor, which were not specific as to the extent the harm was caused by the specific retaliation); and Roppuld v. Small Business Admin., EEOC Appeal No. 07A20141 (Aug. 6, 2003) (awarding $10,000 in retaliatory removal from supervisory position where Complainant experienced depression, weight loss, mental anguish, and loss of professional reputation). Pecuniary Damages Pecuniary damages are quantifiable out-of-pocket expenses incurred as a result of the Agency's discriminatory actions. Damages for past pecuniary damages will not normally be granted without documentation such as receipts, records, bills, cancelled checks, or confirmation by other individuals of actual loss and expenses. Here, we find that Complainant failed to provide any evidence to support her requests for damages. Complainant failed to provide evidence in the form of bills or other documentation that she incurred these losses or would incur losses in the future. Therefore, we find that the Agency's denial of pecuniary damages was appropriate. Attorney's Fees and Costs 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), 11-7. (November 9, 1999). 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. 11-8. The Commission similarly finds that the evidence submitted by the Attorney in support for fees and cost is insufficient. A fee petition must "contain sufficiently detailed information regarding the hours logged and the work performed" to permit the determination of the correct award. National Association of Concerned Veterans (NACY) v. Secretary of Defense, 675 F.2d 1319 (D.C. Cir. 1982). The fee applicant has the burden of establishing the reasonableness of the hours claimed. See Hensley, supra. In support of his request, the fee applicant need not "record in great detail how each minute of his time was expended." Id. at 437, n. 12. However, Complainant's attorney does have the burden of identifying the subject matter on which he spent his time, which can be documented by submitting sufficiently detailed contemporaneous time records to ensure that the time spent was accurately recorded. See Davis v. Dep't of the Treasury, EEOC Request No. 05901213 (March 1, 1991); O'Hara v. Dep't of Agriculture, EEOC Appeal No. 01894035 (Dec. 14, 1989). In the record at hand, the Attorney provided his request for fees in an email in which he only provided the total amount for fees and costs without the appropriate documentation. As such, we find that the Agency properly denied the request for Attorney's fees and costs. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision and REMAND the matter in accordance with the ORDER below. ORDER (C0610) The Agency is ordered to pay Complainant $10,000 in non-pecuniary damages. If the Agency has already made this payment to Complainant, the Agency shall provide evidence of such a payment as indicated below. 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 (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 (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 August 10, 2017 __________________ 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 0120152834 9 0120152834