U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nadene M.,1 Complainant, v. Loretta E. Lynch, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 0720150018 Hearing No. 440-2011-00199X Agency No. BOP-2011-0065 DECISION Following its January 14, 2015 final order, the Agency filed an appeal which the Commission accepts. On appeal, the Agency requests that the Commission affirm its rejection of an Equal Employment Opportunity Commission Administrative Judge's (AJ) finding of reprisal 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Unit Secretary in the Agency's Missouri Unit at the facility in Pekin, Illinois. On December 9, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of her race (African-American), religion (Christian/Catholic), and in reprisal for prior protected EEO activity when: (1) she was subjected to a hostile work environment in the form of derogatory written remarks, a bible being confiscated from a common desk, being told not to socialize with coworkers, being told not to read her bible while sitting at her desk, being told to refrain from praying at work, being told to refrain from having religious discussions with coworkers, being made to remove personal religious items from her office, being denied training and opportunities for promotion, and suggestions that she would be terminated as a way to prevent her from exercising her religious rights; (2) management removed her Freedom of Information Act (FOIA) duties in order to justify a lower performance rating; (3) management failed to act on her allegations of harassment; (4) in January 2011, her supervisor (S1) posted a bible scripture in her office allegedly directed at Complainant; and (5) in January 2011, the Associate Warden discussed transferring members of Complainant's unit away from their supervisor but stated that he didn't want to move the "poison." At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing and the AJ held a hearing on July 24, 2014. The AJ issued a decision on the merits of the complaint on October 6, 2014, finding that Complainant failed to prove race or religious discrimination with respect to any of the issues alleged. The AJ also found, however, that Complainant established that she was subjected to reprisal discrimination with respect to a single claim. The AJ concluded that with respect to claim (4), the bible verse that Complainant's supervisor (S1) posted in her office amounted to retaliation for engaging in prior EEO activity. By way of relief, the AJ awarded Complainant $1,000.00 in nonpecuniary compensatory damages, and ordered the Agency to provide training to management officials and to post a notice of the finding of discrimination. In a separate decision, dated December 1, 2014, the AJ awarded Complainant attorney's fees for an unspecified amount and $3,087.63 in costs. The AJ explained what the allowable hourly rate was and how to calculate the hours, but never provided a final total award amount for attorney's fees. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove she was subjected to unlawful race or religious discrimination. The Agency also rejected the AJ's determination that Complainant was subjected to reprisal discrimination with respect to claim (4). On appeal, the Agency argues that although it agrees with the AJ's finding that S1 placed the bible verse in view of her employees in response to what she believed were Complainant's false allegations against her, this action does not rise to the level of reprisal discrimination as S1 did not attempt to dissuade Complainant or any other employee from participating in the EEO process. The Agency also states that if Complainant prevails on the finding of discrimination in claim (4), then it agrees with the AJ's compensatory damages and attorney's fees and costs awards. The Agency calculated the attorney's fee award by the AJ to be $4,263.00. Complainant did not file an appeal, so the only issue on appeal is the finding of reprisal discrimination with regard to claim (4). Complainant also did not contest the remedies by the AJ or the calculation of attorney's fees by the Agency. ANALYSIS AND FINDINGS Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). Additionally, the Commission interprets the statutory retaliation clauses "to prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity." EEOC Compliance Manual, Section 8 (Retaliation) at 8-13, 8-14 (May 20, 1998). Here, the AJ found that S1 engaged in reprisal discrimination when she posted a bible scripture in her office. Specifically, the AJ found that Proverbs 6:16-19 states that "there are six things the lord hates: haughty eyes; a lying tongue; hands that shed innocent blood; a heart that devises wicked schemes; feet that are quick to rush into evil; a false witness who pours out lies and stirs up conflict in the community." Accordingly, the AJ concluded that S1 kept the sign in her office in order to "antagonize and discourage the employees who had filed religious discrimination complaints." We find that substantial evidence supports the AJ's finding that S1's actions were motivated by retaliatory animus and were reasonably likely to deter Complainant or others from engaging in protected EEO activity. As such, we find that Complainant demonstrated that she was subjected to unlawful retaliation with respect to claim (4). Next, we address the issue of remedies. Nonpecuniary damages are available to compensate the injured party for actual harm, even where the harm is intangible. Carter v. Duncan-Higgins, Ltd., 727 F.2d 1225 (D.C. Cir. 1984). Emotional harm will not be presumed simply because a complainant is a victim of discrimination. The existence, nature, and severity of emotional harm must be proved. The method for computing nonpecuniary damages should typically be based on a consideration of the severity and duration of harm. Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995). We note that for a proper award of nonpecuniary damages, the amount of the award 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 Ward-Jenkins v. Department of the Interior, EEOC Appeal No. 01961483 (March 4, 1999) (citing Cygaar v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989)). Here, the AJ awarded Complainant $1,000.00 in nonpecuniary, compensatory damages, finding that the retaliation suffered by Complainant resulted in an exacerbation of Complainant's preexisting anxiety and depression. We find that given Complainant's testimony, the AJ's award of $1,000.00 is supported by the evidence of record and is consistent with the amount awarded in similar cases. See Markley v. United States Postal Service, EEOC Appeal No. 01A04633 (October 13, 2000) ($1,000.00 in nonpecuniary damages for Complainant's shock, fatigue, and humiliation); Mozell v. Department of the Interior, EEOC Appeal No. 01981521 (August 12, 1999) ($1,000.00 where Complainant's supervisor took steps to undermine her authority over her subordinates based on sex and reprisal, causing Complainant to become much more emotional than normal, including becoming irritable and paranoid); and Weatherspoon v. Department of Agriculture, EEOC Appeal No. 01966395 (March 4, 1999) ($1,000.00 where Complainant was denied a promotion based on race, causing her to feel humiliated and degraded, and become distrustful and defensive). 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). 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); Hensley v. Eckerhart, 461 U.S. 424 (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. A reasonable hourly rate is based on prevailing market rates in the relevant legal community for attorneys of reasonably comparable skill, experience, and reputation in similar cases. Blum v. Stenson, 465 U.S. 886 (1984). In determining the degree of success, the Commission will consider all relief obtained in light of a complainant's goals, and, if a complainant achieved only limited success, a complainant should only recover fees that are reasonable in relation to the results obtained. Hensley, 461 U.S. at 434. While a reasonable fee should not be determined simply by mathematical formula, hours spent on unsuccessful claims should be excluded from the amount of a reasonable fee. Id. Courts have held that fee applicants should exclude time expended on "truly fractionable" claims or issues on which they did not prevail. See Nat'l Ass'n of Concerned Veterans v. Sec'y 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 434-35. In cases where a claim for relief involves "a common core of facts or will be based on related legal theories," however, a fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit. Id. at 435. In the instant case, we concur with the AJ's finding that Complainant's attorney is entitled to 1/5 of the total hours spent on Complainant's case, reflecting success of only one of the five claims in the instant case. Further, we concur with the AJ's finding that travel time should be compensated at a 50% rate, and that the requested hourly rate should be reduced to $245, reflecting the rates that apply in Illinois, which is where the case was heard. Further, we concur with the AJ's award of $3,087.63 in costs. Accordingly, we award Complainant attorney's fees in the amount of $4,263.00 and costs of $3,087.63. CONCLUSION Accordingly, we AFFIRM the AJ's decision finding reprisal discrimination and the AJ's compensatory damages and attorney's fees awards and we MODIFY the Agency's final order. The Agency shall comply with the ORDER herein. ORDER To the extent it has not already done so, the Agency shall take the following remedial actions: 1. Within 60 days of the date on which this decision becomes final, the Agency shall pay Complainant $1,000.00 in nonpecuniary, compensatory damages. 2. Within 60 days of the date on which this decision become final, the Agency shall pay Complainant $4,263.00 in attorney's fees and $3,087.63 in costs. 3. Within 180 days of the date on which this decision becomes final, the Agency shall provide training to Agency employees found to have discriminated against Complainant on their rights and responsibilities under EEO law, with particular focus on preventing unlawful retaliation. 4. The Agency shall consider taking disciplinary action against responsible Agency employees found to have discriminated against Complainant. The Agency shall report its decision to the Commission. If the Agency decides to take disciplinary action, then it shall identify the action taken. If the Agency decides not to take disciplinary action, then it shall set forth the reasons for its decision not to impose discipline. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." POSTING ORDER (G0914) The Agency is ordered to post at its Agency's Pekin, Illinois 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 becomes final, 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 at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. ATTORNEY'S FEES (H0610) 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 this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. §1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0416) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0610) This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations May 20, 2016 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0720150018 8 0720150018