U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jaunita W.,1 Complainant, v. Sonny Perdue, Secretary, Department of Agriculture, Agency. Appeal No. 0120161304 Hearing No. 570-2012-00554X Agency No. CRSD-CF-2011-00113 DECISION On March 18, 2016, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency's February 18, 2016, final order 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. For the following reasons, the Commission MODIFIES the Agency's final order on remedies. ISSUES PRESENTED The issues presented are: (1) whether the Equal Employment Opportunity Commission Administrative Judge (AJ) properly determined that Complainant was not entitled to a promotion and back pay; (2) whether the AJ properly awarded Complainant $3,500 in nonpecuniary compensatory damages; and (2) whether the AJ properly calculated the amount of attorney's fees. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Equal Employment Opportunity Specialist, 0301, GS-13, in the Agency's Compliance Division, Office of Civil Rights in Washington, D.C. On July 21, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), and reprisal for prior protected EEO activity when: 1. Beginning in March 2008, she was subjected to a hostile work environment; 2. Beginning in March 2008, she was not given work assignments, details, promotion opportunities, and promotions; 3. Beginning in March 2008, she received unequal treatment and misinformation about her flexi-place arrangement; 4. Beginning in March 2008, she received unequal treatment regarding assignments, communications, ratings, awards, and working conditions; 5. Beginning in March 2008, there were attempts to detail her out of the organization; 6. Her flexi-place arrangement was cancelled; 7. In 2008, 2009, and 2010, she was not satisfied with her performance ratings; 8. In 2011, she was not designated as a Compliance Team Leader; and 9. In 2011, complex assignments were shifted to others. On March 23, 2012, Complainant requested a hearing before an AJ, claiming that the Agency had failed to accept her complaint or investigate her allegations. The AJ assigned to the case issued an Order Directing Agency to Produce Complaint File and Report of Investigation and cautioned the Agency that sanctions could be imposed if the Agency failed to comply by January 16, 2013, or show good cause for its failure to do so. Complainant filed multiple motions requesting that sanctions be imposed against the Agency. The Agency submitted its Report of Investigation to the AJ on October 17, 2013. On October 29, 2014, the AJ issued a default judgment against the Agency and found that Complainant was entitled to relief, ordering the parties to submit briefs regarding relief. The case was transferred to a second AJ, who ordered the parties to brief the issue of attorney's fees and costs as well. Complainant requested retroactive promotion to the GS-14 level and corresponding back pay, citing two males who were promoted from GS-13 to GS-14. Complainant also requested $35,000 in nonpecuniary compensatory damages. Complainant stated that she was "upset and concerned" and that the discrimination caused her persistent "significant concern and anguish." Complainant averred that she was diagnosed with high blood pressure in 2007 and had to start taking medication for hypertension in 2008. Complainant also submitted a doctor's note that states, "Stress can exacerbate hypertension." Complainant's attorney requested $63,221.61 in attorney's fees and $528.40 in costs. Complainant's attorney justified his hourly rate by noting that he graduated from law school in May 1977 and that since graduating from law school he worked almost exclusively in civil rights and EEO law. The Agency contended that Complainant was only entitled to $43,843.70 in attorney's fees because his experience representing clients only dated to 2003 and corresponded to a lower rate on the Laffey matrix and because fees for pre-complaint processing were disallowed. On February 1, 2016, the AJ issued a Decision on Damages and Attorney's Fees and Costs. The AJ found that Complainant failed to establish a prima facie case with respect to her non-promotion to the GS-14 level and that she was therefore not entitled to be promoted or receive back pay. With respect to the two cited comparators, the AJ found that they were not similarly situated to Complainant because one requested and completed the process of a desk audit, whereas Complainant abandoned her desk audit request, and because one applied for competitive promotion and there was no evidence that Complainant applied for the GS-14 vacancy in question. Regarding nonpecuniary compensatory damages, the AJ found that Complainant provided limited evidence for her claim. Considering similar Commission awards between $2,500 and $5,000 for limited emotional stress, the AJ awarded $3,500 in nonpecuniary compensatory damages. With respect to the hourly rate claimed by Complainant's attorney, the AJ determined that the Laffey matrix was linked to legal experience practicing law and that the attorney's years of experience would be determined based on when he began representing clients in 2003. The AJ therefore awarded Complainant $44,372.10 in attorney's fees and costs. The AJ found that Complainant was generally not entitled to attorney's fees for services performed by her attorney prior to July 21, 2011, although he awarded an additional $435 for 1.65 hours of reasonable pre-complaint representational work. The Agency subsequently issued a final order fully implementing the AJ's default judgment and the AJ's decision regarding damages and attorney's fees. CONTENTIONS ON APPEAL On appeal, Complainant contends that the AJ erroneously found that she failed to establish a prima facie case of sex discrimination with respect to her non-promotion. Complainant also contends that the AJ failed to address the other nine issues in her complaint. Complainant argues that she is entitled to attorney's fees for work done prior to the filing of her formal complaint because the Agency negligently delayed processing her informal complaint. Complainant also contends that the AJ erred in setting aside her attorney's experience in EEO law. According to Complainant, her attorney worked for the Agency from his graduation from law school in 1977 until he retired in 2003, working on personnel grievances until 1981, when he shifted to EEO work. Complainant avers that her attorney's EEO work included representing the Agency in appeals to the Commission, representing the Agency in negotiations, and reviewing final Agency decisions. In response to Complainant's appeal, the Agency contends that Complainant has failed to identify a basis for modifying the AJ's decision and requests that its final order be affirmed. ANALYSIS AND FINDINGS Promotion to GS-14 and Back Pay Upon review, we find that providing Complainant with a promotion to GS-14 level and back pay is not appropriate in this case because she failed to establish a prima facie case of discrimination with respect to her non-promotion. In order to establish a prima facie case, Complainant must demonstrate that: (1) she is a member of a protected class, (2) she was subjected to adverse treatment, and (3) she was treated differently than otherwise similarly situated employees outside of her protected class. Walker v. U.S. Postal Serv., EEOC Appeal No. 01A14419 (Mar 13, 2003); Ornelas v. Dep't of Justice, EEOC Appeal No. 01995301 (Sept. 26, 2002). It is not necessary, however, for her to rely strictly on comparative evidence in order to establish an inference that the Agency was motivated by unlawful discrimination. Soriano v. U.S. Postal Serv., EEOC Appeal No. 01A14814 (Feb. 21, 2004). Although Complainant is a member of a protected class and was subjected to an adverse action, she neither identified any similarly situated individuals outside of her protected class that were treated more favorably nor submitted evidence establishing an inference of discrimination based on race, sex, and/or reprisal. Thus, we agree with the AJ that Complainant's failure to establish a prima facie case with respect to her non-promotion precludes her entitlement to back pay as a remedy. On appeal, Complainant contends that the AJ failed to address the remaining issues in her complaint and requests additional make whole relief. However, we find that the AJ properly characterized the remaining allegations as a hostile work environment claim and determined that Complainant established a prima facie case of a hostile work environment. We adopt the AJ's default judgment finding and modify the AJ's order of relief to include declaratory and injunctive relief, but, with the exception of modifying the nonpecuniary compensatory damages and attorney's fees awards as discussed below, we find that Complainant is not entitled to any additional relief. Nonpecuniary Compensatory Damages A Complainant who establishes her claim of unlawful discrimination may receive compensatory damages for nonpecuniary 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 non-pecuniary damages is $300,000. Id. While there are no definitive rules governing the amount of nonpecuniary damages to be awarded, nonpecuniary damages must be limited to the sums necessary to compensate the injured party for actual harm, even where the harm is intangible, and should take into account the severity of the harm and the length of time that the injured party has suffered the harm. Carter v. Duncan-Higgins, Ltd., 727 F.2d 1225 (D.C. Cir. 1984); Carpenter v. Dep't of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995). The amount of the award of nonpecuniary compensatory damages should not be "monstrously excessive" standing alone, should not be the product of passion or prejudice, and should be consistent with the amount awarded in similar cases. See Cygnar v. City of Chicago, 865 F. 2d 827, 848 (7th Cir. 1989); EEOC v. AIC Security Investigations, Ltd., 823 F. Supp. 571, 574 (N.D. Ill. 1993). Evidence from a health care provider or other expert is not a prerequisite for recovery of compensatory damages for emotional harm. 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)). Complainant's own testimony, along with the circumstances of a particular case, can suffice to sustain her burden in this regard. The more inherently degrading or humiliating the agency'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. See Banks v. U.S. Postal Serv., EEOC Appeal No. 07A20037 (Sep. 29, 2003). Here, the AJ awarded Complainant nonpecuniary compensatory damages in the amount of $3,500 for her emotional distress and worsening blood pressure, citing the general nature of Complainant's emotional distress claim and the sparse medical evidence. Based on the evidence in the record, we find that an award of $8,500 is more in line with Commission precedent, accounting for the present-day value of comparable awards. See Complainant v. U.S. Postal Serv., EEOC Appeal No. 0720140025 (Sep. 28. 2015 (awarding $7,500 where complainant provided little evidence to support her claim for nonpecuniary damages); Butler v. Dep't of Agriculture, EEOC Appeal No. 01971729 (April 15, 1999) ($7,500 nonpecuniary damages award where doctor merely indicated that stress can exacerbate complainant's medical condition); Miller v. U.S. Postal Serv., EEOC Appeal No. 01956109 (Jan. 23, 1998) ($7,500 in nonpecuniary damages where the complainant produced scant evidence to support his claim); see also Lara G. v. U.S. Postal Serv., EEOC Request No. 0520130618 (June 9, 2017) (increasing compensatory damage award to take into account the present-day value of comparable awards). Accordingly, we modify the AJ's award of nonpecuniary compensatory damages. Attorney's Fees Attorneys' fees will be computed by determining the "lodestar": the number of hours reasonably expended multiplied by a reasonable hourly rate. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 11, § VI.F.1 (Aug. 5, 2015). The number of hours should not include excessive, redundant, or otherwise unnecessary hours. Id. "Agencies are not required to pay attorney's fees for services performed during the pre-complaint process, except that fees are allowable when the Commission affirms on appeal an administrative judge's decision finding discrimination after an agency takes final action by not implementing an administrative judge's decision." 29 C.F.R. § 1614.501(e)(iv). A reasonable hourly rate is based on "prevailing market rates in the relevant community" for attorneys of similar experience in similar cases. EEO MD-110 at Ch. 11, § VI.F.1. The Commission and courts generally use the Laffey matrix to determine the hourly rate for Washington, D.C. area attorneys. Laffey v. Northwest Airlines Inc., 572 F. Supp. 354 (D.D.C. 1983), rev'd in part, 746 F.2d 4 (D.C. Cir. 1984). The Laffey matrix is a chart compiled yearly by the United States Attorney's Office in the District of Columbia. It provides a schedule of hourly rates prevailing in the Washington, D.C. area in each year, going back to 1981, for attorneys at various levels of experience. Piper v. U.S. Dep't of Justice, 339 F. Supp. 2d 13, 24 n. 8 (D.D.C. 2004). Complainant contends that she should be awarded attorney's fees for work completed prior to filing her formal complaint, arguing that the Agency negligently delayed processing her informal complaint. However, there is no basis for awarding attorney's fees for pre-complaint work, with the exception of "a reasonable period of time prior to the notification of representation for any services performed in reaching a determination to represent the complainant." See 29 C.F.R. § 1614.501(e)(1)(iv). Accordingly, we find that the AJ properly denied Complainant's claim for attorney's fees prior to filing her formal complaint, with the exception of the 1.65 hours spent determining whether to represent Complainant. We next consider the reasonable hourly rate for Complainant's attorney. The AJ found that Complainant's attorney could not count experience gained working for the Agency's Office of Civil Rights prior to beginning to represent clients in private practice in 2003. However, we find that the AJ erred in excluding Complainant's attorney's years of employment discrimination law experience. The Commission has specifically held that the Laffey matrix is based on time out of law school rather than a time spent in a specific legal field. See Mora-Beals v. Broadcasting Board of Governors, EEOC Appeal No. 01A14897 (April 9, 2002). The Commission has also found that the metric of years out of law school was improperly adjusted downward for time prior to passing the bar examination or for time spent on an extended leave of absence. See Rowland v. Dep't of Agriculture, EEOC Appeal No. 0120113022 (Feb. 8, 2012). Therefore, we find that Complainant's attorney's years of experience should be calculated from his 1977 law school graduation, entitling him to the requested Laffey matrix rates. In his decision, the AJ justified the departure from the Laffey matrix based on the Commission's decision in Chris v. Central Intelligence Agency, EEOC Appeal No. 01956844 (July 19, 1996). In Chris, we held, "an attorney with twenty-plus years of relevant experience in employment discrimination litigation should be entitled to reimbursement at a higher rate than an attorney with twenty-plus years of general experience but little in the relevant area." Id., citing Park v. Howard Univ., 881 F.Supp. 652 (D.D.C. 1995). However, we find the instant case distinguishable from the situation in Chris because Complainant's attorney, unlike the attorney in Chris, possesses more than 20 years of experience in employment discrimination law. The Agency contends that his time with the Agency should not count as legal experience, but the Commission has rejected the contention that the administrative EEO process requires less skill than federal litigation as a justification for reducing fees. See Lowe v. Dep't of the Air Force, EEOC Appeal No. 01851668 (May 19, 1987). Accordingly, Complainant's attorney is entitled to the requested Laffey rates based on his years of experience. We find that the following rates and hours are allowed: 1. 1.65 hours at $475 per hour = $783.75 2. 17.66 hours at $495 per hour = $8,741.70 3. 10.47 hours at $505 per hour = $5,287.35 4. 46.4 hours at $510 per hour = $23,664.00 5. 20.77 hours at $520 per hour = $10,800.40 6. 2.67 hours at $568 per hour = $1,516.56 Therefore, Complainant is entitled to a total of $50,793.76 in attorney's fees, plus $528.40 in costs, for a total of $51,322.16 in attorney's fees in costs. 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 final order fully implementing the AJ's decision on remedies and REMAND the matter to the Agency for further processing in accordance with this decision and the ORDER below. ORDER To the extent that it has not already done so, the Agency is ORDERED to take the following remedial actions: 1. Within sixty (60) days of the date this decision is issued, the Agency shall pay Complainant $8,500 in nonpecuniary compensatory damages, less any amount previously paid to Complainant as nonpecuniary compensatory damages. 2. Within sixty (60) days of the date this decision is issued, the Agency shall pay Complainant $51,322.16 in attorney's fees and costs, less any amount previously paid to Complainant as attorney's fees and costs. 3. Within ninety (90) days of the date this decision is issued, the Agency shall conduct a minimum of four hours of in-person or interactive training for its Washington, D.C. Office of Civil Rights staff, with a particular focus on EEO case processing. 4. Within sixty (60) days of the date this decision is issued, the Agency shall consider discipline against the responsible management officials. The Commission does not consider training to constitute disciplinary action. 5. Within thirty (30) days of the date this decision is issued, the Agency shall post a notice in accordance with the statement entitled "Posting Order." The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled "Implementation of the Commission's Decision." The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further, the report must include evidence that the corrective action has been implemented. POSTING ORDER (G0617) The Agency is ordered to post at its Washington, D.C. Office of Civil Rights facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (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 (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 6-15-2018 __________________ 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 0120161304 10 0120161304