Complainant,

v. 

John M. McHugh,
Secretary,
Department of the Army,
Agency.

Appeal No. 0120120446

Hearing No. 430-2007-00311X

Agency No. ARBRAGG06SEP03782

DECISION

On October 24, 2011, Complainant filed an appeal from the Agency's September 15, 2011 final decision concerning his claim for compensatory damages and attorney's fees awarded pursuant to his equal employment opportunity (EEO) complaint, alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.  The Commission deems the appeal timely and accepts it for de novo review pursuant to 29 C.F.R. § 1614.405(a).  For the following reasons, the Commission MODIFIES the Agency's final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a GS-10 Air Traffic
Controller at the Agency's Range Control Division in Fort Bragg, North Carolina.   On June 6, 2006, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), age (49), and in reprisal for prior protected EEO activity when:  

1.	he was not selected for the position of Supervisory Air Traffic Control Specialist, GS-2152-11; and

2.	he received an overall rating of "3" on a performance evaluation.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ).  Complainant timely requested a hearing, and the AJ held a hearing and issued a decision finding no discrimination.  The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination.  

On appeal, the Commission affirmed the AJ's findings with respect to the nonselection and performance evaluation claims set out in the original complaint.  EEOC Appeal No. 0120090596 (April 29, 2011).  In that decision the Commission also concluded that the evidence in the record established an additional claim: interference with the EEO process.  The undisputed evidence showed that when Complainant's supervisor (S2) learned that Complainant intended to file a formal EEO complaint, S2 threatened Complainant by stating that pursuing an EEO claim "would not be in [Complainant's] best interest."  The Commission found this statement to constitute unlawful retaliatory interference with the EEO process.  Based on that finding, the Commission remanded the matter to the Agency to determine Complainant's entitlement to compensatory damages and attorney's fees.

On remand, in a final decision dated September 15, 2011, the Agency awarded Complainant $6,000 in non-pecuniary compensatory damages and $6,870.30 in attorney's fees and costs.  From that decision, Complainant brings the instant appeal.

ANALYSIS AND FINDINGS

Compensatory Damages

Non-pecuniary 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 the complainant is a victim of discrimination. The existence, nature, and severity of emotional harm must be proved. The method for computing non-pecuniary 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 non-pecuniary 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-Jenkcins 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, Complainant testified that the adverse effects he suffered resulting from S2's retaliatory behavior extended over a period of approximately three years.  His injury consisted of embarrassment, humiliation, anguish and the deterioration of his relationship with his co-workers.  He also experienced physical problems, including weight gain, exacerbation of pervious hypertension, insomnia and loss of libido, and his relationship with his wife and children suffered.

We find that an award of $40,000 is more appropriate than the $6,000 allowed by the Agency, given the nature and duration of the harm. We find that this award is supported by the evidence, is neither "monstrously excessive" nor the product of passion or prejudice and is consistent with prior Commission precedent.  See Smith v. U.S. Postal Service, EEOC Appeal No. 0720070031 (Dec. 7, 2009) ($30,000 awarded in non-pecuniary damages where complainant suffered emotional harm in the form of humiliation, harassment, feelings of uncertainty about her job and career, and a relapse of depression over a period of three years); Banks v. U.S. Postal Service, EEOC Appeal No. 07A20037 (Sept. 29, 2003) ($35,000 awarded where complainant suffered from emotional harm in the form of humiliation, intimidation, embarrassment, and deep depression); McNeese-Ards v. Dep't of Veterans Affairs, EEOC Appeal No. 0720090027 (April 15, 2010) ($45,000 in non-pecuniary compensatory damages awarded where complainant suffered from depression, loss of sleep, severe emotional distress, and anxiety).

Attorney's Fees

In its final decision, the Agency has reduced the fees sought in the attorney's fees petition by approximately half, from $13,336,30 to $6,466.00, on the theory that Complainant was less than fully successful in pursuing the claims raised by the complaint.  Specifically, although Complainant proved that the Agency retaliated against him, he did not prove that his nonselection and his unfavorable performance evaluation were the result of discrimination.

The Agency is correct that attorney's fees may not be recovered for work on unsuccessful claims. Hensley v. Eckerhart, 461 U.S. 424, at 434-35. 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. "The hours spent on unsuccessful claims should be excluded in considering the amount of a reasonable fee only where the unsuccessful claims are distinct in all respects from the successful claims." See EEO MD-110, Chap. 11, § 6.A.7 (citation omitted).

In this case, we find that Complainant's unsuccessful nonselection and performance evaluation claims are not fractionable from his retaliatory interference claim, because it cannot be said that the nonselection and evaluation claims on which Complainant did not prevail were "distinct in all respects" from the retaliation claim on which he was successful. We note that the facts underlining the retaliation claim provide evidence of discriminatory animus that tended to support the other claims.  In addition, two of the witnesses who testified concerning the unsuccessful claims also gave evidence to support the successful claim.  All of the claims had common underlying facts and the development of each claim was intertwined with the others. As such, we conclude that no reduction in the fee award is warranted here.


CONCLUSION

For the foregoing reasons, we MODIFY the Agency's award of compensatory damages and attorney's fees and costs.

ORDER

To the extent it has not already done so, within sixty (60) days of the date this decision becomes final:

1. The Agency shall pay Complainant $40,000.00 in non-pecuniary compensatory damages.
2. The Agency shall pay Complainant $13,336.30 in attorney's fees and costs.

The Agency is further directed to submit a report of compliance, as is provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action listed in this order has been implemented.

ATTORNEY'S FEES (H0610)

If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he 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 (M0610)

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 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 77960, Washington, DC 20013.  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 (Z0610)

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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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


November 14, 2014
Date
2
0120120446






U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013