Beatrice L. Wiggins v. Social Security Administration
07A30048
January 22, 2004
.



Beatrice L. Wiggins,
Complainant,

v.

Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.

Appeal No. 07A30048
Agency No. 99-0054-SSA
Hearing No. 320-A0-8064X

DECISION

Following the agency's December 16, 2002 final order, the agency
and complainant each filed a timely appeal which the Commission
consolidates and accepts pursuant to 29 C.F.R. § 1614.405.  On appeal,
the agency requests that the Commission affirm its rejection of an
EEOC Administrative Judge's (AJ) finding that the agency discriminated
against complainant in violation of Title VII of the Civil Rights Act of
1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.  The agency also
requests that the Commission affirm its rejection of the AJ's order to pay
damages to complainant.  Complainant requests that the agency's decision
be reversed, with two limited exceptions which will be described below.
For the following reasons, the Commission REVERSES the agency's final
order.

The record reveals that, at the relevant time, complainant was a GS-13
Field Office Assistant Manager at the agency's Denver, Colorado Field
Office.  Believing she was a victim of discrimination, complainant
filed a formal EEO complaint with the agency on November 10, 1998,
alleging that the agency had discriminated against her on the bases of
her age, disability and race (African-American who associated with White
individuals) when she was not selected for a GS-14, Social Insurance
Administrator position at the agency's Aurora, Colorado Field Office.
At the conclusion of the investigation, complainant was provided a copy
of the investigative report and requested a hearing before an AJ.

Following a hearing, the AJ found that complainant failed to establish
a prima facie case of age or disability discrimination.  The AJ
found, however, that complainant established a prima facie case
of race discrimination.  The AJ additionally found that the agency
articulated legitimate, nondiscriminatory reasons for its selection;
namely, the selecting official (S1) chose the selectee (SE) because she
was “stronger” than any of the recommended candidates, and because of
her experience, qualifications, leadership and management philosophy.
Additionally, SE was chosen because S1 had known her for 15 years,
and he believed that SE was an exemplary employee.  The AJ further
concluded that complainant established that more likely than not, the
reasons provided by the agency were pretext for race discrimination.
In reaching this conclusion, the AJ noted that S1was not a credible
witness, that his action was not consistent with agency policy and
procedure, and that there were unrebutted allegations that S1 had made
racist and derogatory statements about certain White management officials
with whom complainant was associated.

The agency's final order rejected the AJ's decision.  On appeal, the
agency argues that the AJ erred in finding race-based discrimination.
Specifically, the agency argues that in order to establish a prima facie
case of associational discrimination, complainant would have to show
that she had a close extra-work relationship (and not merely a working
relationship) with White individuals.  The agency also contends that
the instant case ought to have been consolidated with the case of a
manager at the same agency location whose complaint was very similar
to this case.  The agency further contends that the AJ's findings of
fact were not supported by substantial evidence of record.  Finally,
the agency contends that the AJ's assessment of nonpecuniary damages is
unfounded, excessive, and inconsistent with EEOC precedent.

On appeal, complainant, through her attorney, agrees with the AJ's
finding of race discrimination and also contends that the AJ made the
following two errors: (1) the AJ improperly ruled that complainant
failed to established that she is an individual with a disability; and
(2) the AJ improperly calculated the attorney's fee award.

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.

We begin by noting that we find that the AJ did not abuse his discretion
in denying the request to consolidate the instant case with a complaint
filed by a White manager at the same agency location.  Additionally, we
will not disturb the AJ's finding that complainant failed to establish
a prima facie case of disability discrimination because under the
circumstances presented herein, a finding of disability discrimination
would not increase the remedies to which complainant is entitled.

The allocation of burdens and order of presentation of proof in a
Title VII case alleging disparate treatment discrimination are a three
step procedure: complainant has the initial burden of proving, by a
preponderance of the evidence, a prima facie case of discrimination;
the burden then shifts to the employer to articulate some legitimate,
nondiscriminatory reason for its challenged action; and complainant must
then prove, by a preponderance of the evidence, that the legitimate reason
offered by the employer was not its true reason, but was a pretext for
discrimination.  McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

We agree that complainant established a prima facie case of associational
race discrimination.  Contrary to the agency's contention, complainant
is not required to show that she had a close extra-work relationship
with White individuals.  Complainant is only required to show that
an actual relationship existed between the individual(s) of another
race and herself.  See Kap-Cheong v. Korea Express USA, Inc., 2003 WL
946103 (N.D. Cal)( February 12, 2003) (complainant, who was terminated
for having assigned a Korean individual an airplane seat next to an
African-American, could not show that he had an actual relationship
with the African-American passenger).  Here, we agree with the AJ's
finding that complainant has made the requisite showing that an
actual relationship existed between her White managers and herself.
Additionally, the AJ's finding that complainant's association with
her White supervisors was held against complainant by S1 because of
complainant's race, is supported by substantial evidence in the record.
See LaRocca v. Precision Motorcars Inc., 45 F.Supp. 2d. 762 (March 26,
1999) (complainant was required, but failed, to show that but for being
Italian-American, he would not have been discriminated against because
of his association with an African-American co-worker).

We further find that the agency articulated legitimate, nondiscriminatory
reasons for selecting SE; namely, she was “stronger” than any of the
recommended candidates, and because of her experience, qualifications,
leadership and management philosophy.  Additionally, the agency stated
that SE was chosen because S1 had known her for 15 years, and he believed
that SE was an exemplary employee.  We find that the AJ's conclusion that
complainant established that the agency's articulated nondiscriminatory
reason is unworthy of belief, is supported by substantial evidence
in the record.  In so finding, we note that the record indicates that
complainant's qualifications were plainly superior to SE.  Additionally,
we note the following evidence of record: One of complainant's White
managers (M1) was assigned to make recommendations regarding who should
be selected for the subject position.  M1 made three recommendations,
one of whom was complainant.  After receiving the recommendations, S1
suddenly decided to nullify the selection process (which he had originally
ordered), and selected SE instead of complainant.  Substantial evidence of
record suggests that S1's decision was likely motivated by his desire to
show the White managers that they were not running the region, and that
he was the boss.  Substantial evidence of record also indicates that S1
likely had a philosophy of rewarding those Black employees who aligned
themselves with himself, instead of with the White managers, and that he
disapproved of complainant because he felt she had aligned herself with
the White managers.  For the above reasons, we conclude that complainant
was a victim of race discrimination as to the nonselection in question.

Compensatory Damages

In West v. Gibson, 527 U.S. 212 (1999), the Supreme Court held that
Congress afforded the Commission the authority to award compensatory
damages in the administrative process.  Section 102(a) of the CRA,
codified as 42 U.S.C. §  1981a, authorizes an award of compensatory
damages as part of the "make whole" relief for intentional discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended.
Section 1981a(b)(3) limits the total amount of compensatory damages
that may be awarded to each complaining party for future pecuniary
losses, emotional pain, suffering, inconvenience, mental anguish, loss
of enjoyment of life, and other non-pecuniary losses, according to the
number of persons employed by the respondent employer.  The limit for
an employer with more than 500 employees, such as the agency herein,
is $300,000.00.  42 U.S.C.  § 1981a(b)(3)(D).

The particulars of what relief may be awarded, and what proof is necessary
to obtain that relief, are set forth in detail in Enforcement Guidance:
Compensatory and Punitive Damages Available Under § 102 of the Civil
Rights Act of 1991, EEOC Notice No. 915.002, (July 14, 1992) (Guidance).
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. Department of
the Navy, EEOC Appeal No. 01934157 (July 22, 1994) req. for recons. den.
EEOC Request No. 05940927 (December 11, 1995).  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.  Guidance at 11-12.  The amount
of non-pecuniary damages should also reflect the nature and severity of
the harm to complainant, and the duration or expected duration of the
harm. Id. at 14.

In Carle v. Department of the Navy, the Commission explained that 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 (January 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. Department of Agriculture, EEOC
Appeal No. 01945652 (July 17, 1995).

Compensatory damages may be awarded for the past pecuniary losses,
future pecuniary losses, and non-pecuniary losses which are directly
or proximately caused by the agency's discriminatory conduct.  Guidance
at 8.  Pecuniary losses are out-of-pocket expenses that are incurred as a
result of the employer's unlawful action, including job-hunting expenses,
moving expenses, medical expenses, psychiatric expenses, physical
therapy expenses, and other quantifiable out-of-pocket expenses.  Id.
Past pecuniary losses are the pecuniary losses that are incurred prior
to the resolution of a complaint via a finding of discrimination, an
offer of full relief, or a voluntary settlement.  Id. at 8-9.

A compensatory damages award should fully compensate a complainant for
the harm caused by the agency's discriminatory action even if the harm
is intangible.  Id. at 13.  Thus, a compensatory damages award should
reimburse a complainant for proven pecuniary losses, future pecuniary
losses, and non-pecuniary losses.  Note, however, that compensatory
damage awards only became available to complainants after the effective
date of the CRA of 1991, November 21, 1991.

The AJ found that complainant suffered the following nonpecuniary losses:
she had increased back pain, due in part by the agency's discrimination,
and in part to her increased work hours; she cried frequently for three
months; she experienced a loss of friends and social life; she became less
outgoing and jovial; she stopped going to movies which she had previously
enjoyed; she suffered from stress, depression, nausea, insomnia,
and headaches; she had to seek help for her stress from her doctor and
church pastor; she experienced embarrassment, loss of self-esteem; and a
perceived decline in her professional stature at her place of employment.

After analyzing the evidence which establishes the harm sustained
by complainant, with note of the serious nature and duration of her
suffering, and upon consideration of damage awards reached in comparable
cases as cited by the AJ, the Commission finds that the AJ's award of
non-pecuniary damages in the amount of $70,000.00, is proper.  We further
find that this award is not motivated by passion or prejudice, is not
"monstrously excessive" standing alone, and is consistent with the amounts
awarded in similar cases.  See Cygnar v. City of Chicago, 865 F.2d 827,
848 (7th Cir. 1989).

Attorney's Fees and Costs

Complainant requested an award of attorney's fees in the amount
of $35,635.20, calculated at the attorney's current hourly rate
of $200.00.  Complainant additionally requested $3,881.64 for costs.
The AJ calculated his attorney fee award of $29,155.60 at an hourly rate
of $180.00, which had been complainant's attorney's rate at the time
the services were rendered.  The AJ also disallowed services performed
by a second attorney, on the basis that there was no demonstrated need
for two attorneys to work on the case.  The AJ approved complainant's
request for costs in the amount of $3,881.64.  Therefore, the AJ's award
of attorney's fees and costs totaled $33,037.24.

The Commission may award complainant reasonable attorney's fees and other
costs incurred in the processing of a complainant regarding allegations
of discrimination in violation of Title VII.  29 C.F.R. § 1614.501(e).
A finding of discrimination raises a presumption of entitlement to an
award of attorney's fees.  Id.  Attorney's fees shall be paid for services
performed by an attorney after the filing of a written complaint.  Id.
An award of attorney's fees is determined by calculating the lodestar,
i.e., by multiplying a reasonable hourly fee times a reasonable number of
hours expended.  Hensley v. Eckerhart, 461 U.S. 424 (1983); 29 C.F.R. §
1614.501(e)(2)(ii)(B).  “There is a strong presumption that this amount
represents the reasonable fee.”  29 C.F.R. § 1614.501(e)(2)(ii)(B).
A reasonable hourly fee is the prevailing market rate in the relevant
community.  Blum v. Stenson, 465 U.S. 886 (1984).  A petition for fees
and costs must take the form of the verified statement required by the
Commission's regulations at 29 C.F.R. § 1614.501(e)(2)(i).
We cannot concur with the AJ's finding that complainant's use of two
attorneys in this case was excessive.  In so finding, we note that
this was a complex nonselection case because it involved a claim of
associational discrimination.  The Commission has decided very few
such claims.  Additionally, the selection at issue was for a high level
management position, which is afforded greater deference than a selection
for a regular staff position, relying, as it must, on the subjective
qualifications of management and leadership abilities.  We further
note that the agency also had two attorneys present for each day of
the hearing.  Accordingly, complainant is entitled to be compensated
for the services of both attorneys.  As to the hourly rate, we find,
consistent with Commission precedent, that complainant is entitled to a
fee award calculated at her attorney's current hourly rate of $200.00,
rather than at the $180.00 hourly rate which was current at the time
that the attorneys' fees were rendered.  See Missouri v. Jenkins, 491
U.S. 274, 282-283 (1989).  For the above reasons, complainant is to be
awarded attorney's fees and costs in the amounts she requested.

After a careful review of the record, we discern no basis to disturb
the AJ's finding of discrimination.  The findings of fact are supported
by substantial evidence, and the AJ correctly applied the appropriate
regulations, policies, and laws.  Therefore, after a careful review of
the record, including arguments and evidence not specifically discussed
in this decision, the Commission REVERSES the agency's final order and
directs the agency to take corrective action in accordance with this
decision and the Order below.

ORDER

Within sixty (60) days of the date this decision becomes final, and to
the extent it has not already done so, the agency is ordered to:

 The agency shall determine the appropriate amount of back pay (with
 interest, if applicable) and other benefits due complainant pursuant to
 29 C.F.R. § 1614.501, no later than sixty (60) calendar days after the
 date this decision becomes final.  Complainant is entitled to back pay
 amounting to the difference in pay and benefits she actually received
 from May 10, 1998, to September 1, 2000, and the pay and benefits
 she should have received had she been selected for, and entered on
 duty in the subject position beginning on May 10, 1998, and ending on
 September 1, 2000.  Complainant is also entitled to a re-calculation
 of her retirement benefits based upon the higher salary she would have
 received had she been selected for the subject position.  Complainant
 shall cooperate in the agency's efforts to compute the amount of back pay
 and benefits due, and shall provide all relevant information requested
 by the agency.  If there is a dispute regarding the exact amount of back
 pay and/or benefits, the agency shall issue a check to the complainant
 for the undisputed amount within sixty (60) calendar days of the date
 the agency determines the amount it believes to be due. The complainant
 may petition for enforcement or clarification of the amount in dispute.
 The petition for clarification or enforcement must be filed with the
 Compliance Officer, at the address referenced in the statement entitled
 "Implementation of the Commission's Decision."

 The agency shall pay complainant $70,000.00 in non-pecuniary compensatory
 damages.

 The agency shall pay attorney's fees and costs in the amount of
 $39,516.84.

 The agency shall provide EEO training, with special emphasis on the
 agency's obligations under Title VII, to the agency official(s) found
 to have discriminated against complainant.

 The agency shall consider taking appropriate disciplinary action
 against the responsible management officials.  The Commission does not
 consider training to be disciplinary action.  The agency shall report
 its decision to the compliance officer.  If the agency decides to take
 disciplinary action, it shall identify the action taken.  If the agency
 decides not to take disciplinary action, it shall set forth the reason(s)
 for its decision not to impose discipline.  If any of the responsible
 management officials have left the agency's employ, the agency shall
 furnish documentation of their departure date(s).

 The agency shall post the attached notice on all employee bulletin
 boards indicating that it has been found to have discriminated against
 an employee in violation of the Commission's regulations and Title VII.

 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.

POSTING ORDER

The agency is ordered to post at its Aurora, Colorado Field Office,
copies of the attached notice.  Copies of the notice, after being
signed by the agency's duly authorized representative, shall be posted
by the agency within thirty (30) calendar days of the date this decision
becomes final, and shall remain posted for sixty (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 ten (10) calendar days of the expiration
of the posting period.

ATTORNEY'S FEES (H1092)

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 (K0501)

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 19848, Washington,
D.C. 20036.  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 (M0701)

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), 9-18 (November 9, 1999). All
requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. 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 (S0900)

You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision.    If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title.  Failure to do so may result in the dismissal of your
case in court.  "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1199)

If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security.  See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court.  Filing a request for an attorney does not extend your time
in which to file a civil action.  Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").




FOR THE COMMISSION:


______________________________
Carlton M. Hadden, Director
Office of Federal Operations

January 22, 2004
__________________
Date