Monday, July 21, 2014

Entitlement to out-of-pocket expenses require documentation

The federal agency attorney assigned to fight the federal employee in their eeoc discrimination claim, has unlimited resources, a legal team and more knowledge and experience than most attorneys that a federal employee could ever retain. Even if the federal employee seeks the help of a union lawyer, they may be no match for going against the federal government. Unless you have evidence, documentation and receipts, invoices and can show harm from the discrimination. Then at best, all the agency attorney can do is try to reduce the award.

This federal agency attorney is not an employee of the EEOC. This federal agency attorney can see the vast evidence against the agency, and know that the agency is guilty of discrimination, yet must work to defend the agency, intimidate and reduce any award, cite cases not exactly relevant to reflect the goals of the agency. 

You must get your claim out of the agency, and into the hands of the EEOC attorney. This applies only when you appeal the FAD. If you are still not satisfied, you can always use your right to sue and go to U.S. District court. 

Consider this: The cost of going to federal court and the potential award might mean, to accept the award from the EEOC, and be done with it.

In Loretta Bad Heart Bull v. Department of Health and Human Services, we can already see that if Loretta had better documentation of expenses, better records of medical treatment, she could have been awarded several thousands of dollars in addition to what she was awarded.

"On appeal, complainant contends that the agency failed to properly inform her that she was required to submit copies of documents such as retail installment contracts in order to be reimbursed for pecuniary damages."

"Complainant argues that she did not submit the appropriate objective evidence to establish that she purchased two cars due to the agency's discriminatory action because the agency failed to inform her that she needed to submit receipts or bills to support these claims."

CLICK FOR HELP ON PROPER RECORD KEEPING TO INCREASE AWARD 

Commission precedent establishes that in order to establish entitlement to
out-of-pocket expenses, a complainant must provide documentation of those expenses.  

See Hogeland v. Department of Agriculture, EEOC Appeal No. 01976440 (June 14, 1999).

Moreover, in the agency's final decision
finding discrimination, the agency informed complainant that in order
to establish her entitlement to compensatory damages, she needed to
provide objective evidence of the damages she incurred.  Although the
agency did not describe in detail what evidence should be provided, the
record establishes that complainant had an attorney when she submitted
her claim for compensatory damages and that he had received the agency's
request for objective evidence in support of the claim.

To justify its failure to reimburse complainant for this expense, the agency argued that complainant failed to provide a receipt for the prosthesis.  A review of the record reveals, however, that complainant provided an invoice from her Certified Prosthetist which noted that complainant's significant weight loss as
of December 1999 required her to purchase a new prosthesis and that the billed amount for this prosthesis was $24,369.00.  Complainant is therefore entitled to the amount of $24,369.00 for this expense.
Accordingly, we agree with the agency's conclusion that complainant failed to provide sufficient evidence to establish that she is entitled to receive reimbursement for the two cars she purchased.
Although complainant provided, on appeal, a retail installment  contract
establishing that she purchased a new car in March 2000 for $36,255.70,
this is new evidence which cannot be considered on appeal inasmuch as
complainant failed to provide persuasive evidence that she was not given
sufficient notice and/or opportunity to submit documentation in support of
her claim to the agency prior to its compensatory damages determination.

The agency awarded complainant $10, 689.90 in past pecuniary damages based on its calculation of how many days she was required to drive to her new duty station in Fort Mead. (the agency calculated mileage)

Besides poor record keeping, her medical documentation were not specific enough, to avoid scrutiny by the federal agency attorney.

The agency concluded that complainant failed to provide sufficient evidence to establish that the expenses she incurred due to treatment sought at the Living Centered Program was related to the agency's discriminatory actions.  While it is true that the letter from the Living Centered Program does not indicate why complainant sought treatment there in September 1999,

Loretta Bad Heart Bull v. Department of Health and Human Services
01A12574
August 28, 2002
.



Loretta Bad Heart Bull,
Complainant,

v.

Tommy G. Thompson,
Secretary,
Department of Health and Human Services,
Agency.

Appeal No. 01A12574

Agency No. IHS01398

DECISION

Loretta Bad Heart Bull (complainant) timely initiated an appeal from a
final agency decision (FAD) concerning her entitlement to compensatory
damages incurred as a result of the agency's unlawful 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.<1>  The appeal is accepted pursuant to 29 C.F.R. 1614.405.
For the following reasons, the agency's final decision is MODIFIED.

On August 1, 2000, the agency determined that it had discriminated against
complainant on the bases of sex (female) and age (52 at the relevant
time) when it downgraded her position of Community Health Director from
GS-1710-13 to GS-1710-12, Education Program Administrator and changed  her
duty station from Rapid City, South Dakota to Fort Mead, South Dakota.
The agency awarded various remedial relief, including proven compensatory
damages and advised complainant to submit objective evidence in support
of her claim for compensatory damages.

Subsequently, on January 24, 2001, the agency issued a final decision in
regard to complainant's compensatory damages claim.  Therein, the agency
awarded complainant $10,689.90 in past pecuniary damages based on her
claim that due to the discrimination, she was forced to drive 60 miles
a day to get to her new duty station.  The agency denied complainant's
request for reimbursement for the purchase of two cars, noting that
she failed to provide objective evidence establishing her entitlement
to such damages.  The agency also denied complainant's request for
medical and travel expenses for attending the Living Centered Program,
noting that there was no evidence that complainant's attendance at this
program was related to the agency's discriminatory actions.  Finally,
the agency rejected complainant's claim for a new prosthesis, noting
that she failed to provide sufficient objective evidence that this
out-of-pocket loss was caused by the discrimination.

The agency then denied complainant's claim for future pecuniary losses,
noting that she requested such losses based on her non-selection for a
position at the Sioux San Hospital.  The agency concluded that complainant
failed to establish a nexus between her non-selection and the agency's
discriminatory actions.

Finally, the agency determined that complainant should be awarded
$15,000.00 in non-pecuniary damages.  In so finding, the agency concluded
that some of complainant's depression was caused by events other than
those found to be discriminatory.  The agency also noted that some of
the requested damages were related to the filing of the EEO complaint
and that complainant could not recover compensatory damages for stress
associated with the processing of an EEO complaint.

On appeal, complainant contends that the agency failed to properly inform
her that she was required to submit copies of documents such as retail
installment contracts in order to be reimbursed for pecuniary damages.
She also argues that her statements are sufficient to support her
request for damages, noting that she told the agency in December 1999
that her car had "devalued" in the amount of $24,000.00.  She argues that
the evidence she provided demonstrates an entitlement to reimbursement
for the purchase of two cars.  Similarly, she argues that the record
as a whole establishes that she attended the Living Centered Program
due to the agency's discriminatory actions.  She further contends that
the statement of one of her colleagues establishes that her need for a
new prosthesis was due to the weight she lost because of the agency's
discriminatory actions.   Complainant reiterates arguments made during
the investigation that she is entitled to future pecuniary damages due
to her non-selection, and, at the very minimum, a non-pecuniary award
in the amount of $100,000.00.

In response, the agency essentially reiterates arguments made in its
FAD and asks that it be affirmed.

ANALYSIS AND FINDINGS

Pursuant to section 102(a) of the Civil Rights Act, a complainant who
establishes 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 Supreme Court has confirmed that the Commission possesses the legal
authority to require federal agencies to pay compensatory damages.
See West v. Gibson, 527 U.S. 212 (1999).

The particulars of what relief may be awarded, and the proof necessary to
obtain that relief, are set forth in detail in Compensatory and Punitive
Damages Available Under Section 102 of the Civil Rights Act of 1991,
EEOC Notice No. N-915.002 (July 14, 1992) (Compensatory Damages Notice).
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.  See Damiano v. United States Postal
Service, EEOC Request No. 05980311 (February 26, 1999).  The amount
awarded should reflect the extent to which the agency's discriminatory
action directly or proximately caused harm to complainant and the extent
to which other factors may have played a part.  See Compensatory Damages
Notice, 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.  A complainant
is required to provide evidence that will allow an agency to assess the
merits of complainant's request for emotional distress damages.  See Carle
v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993).

Evidence of Injury and Causation

Complainant established that she suffered pecuniary and non-pecuniary
damages as a result of the agency's discriminatory actions through
her own testimony, as well as the statements of colleagues.  Moreover,
the agency, in finding that complainant is owed compensatory damages,
agreed that there is a causal connection between its discriminatory
actions and at least a portion of complainant's damages.

Calculation of Damages Payable

Past Pecuniary Damages

Mileage

The agency awarded complainant $10, 689.90 in past pecuniary damages
based on its calculation of how many days she was required to drive
to her new duty station in Fort Mead.  Although complainant originally
requested $12,090.00 in mileage costs, she did not, on appeal, rebut the
agency's argument that the correct reimbursement per mile is 31 cents,
rather than the 32.5 cents she requested.  We therefore find that the
agency awarded the appropriate amount for this cost.

Reimbursement for Purchase of Cars

Complainant argues that she did not submit the appropriate objective
evidence to establish that she purchased two cars due to the agency's
discriminatory action because the agency failed to inform her that she
needed to submit receipts or bills to support these claims.  She also
argues that her statements concerning these damages is enough to establish
her entitlement.

Complainant's claim that her statement as to out-of-pocket expenses
is sufficient to establish her entitlement is erroneous.  Commission
precedent establishes that in order to establish entitlement to
out-of-pocket expenses, a complainant must provide documentation of
those expenses.  See Hogeland v. Department of Agriculture, EEOC Appeal
No. 01976440 (June 14, 1999).  Moreover, in the agency's final decision
finding discrimination, the agency informed complainant that in order
to establish her entitlement to compensatory damages, she needed to
provide objective evidence of the damages she incurred.  Although the
agency did not describe in detail what evidence should be provided, the
record establishes that complainant had an attorney when she submitted
her claim for compensatory damages and that he had received the agency's
request for objective evidence in support of the claim.

Accordingly, we agree with the agency's conclusion that complainant
failed to provide sufficient evidence to establish that she is
entitled to receive reimbursement for the two cars she purchased.
Although complainant provided, on appeal, a retail installment  contract
establishing that she purchased a new car in March 2000 for $36,255.70,
this is new evidence which cannot be considered on appeal inasmuch as
complainant failed to provide persuasive evidence that she was not given
sufficient notice and/or opportunity to submit documentation in support of
her claim to the agency prior to its compensatory damages determination.

Prosthesis

Complainant provided sufficient evidence to establish that the agency's
discriminatory actions led to the necessity of purchasing a new prosthesis
in the amount of $24,369.00.   Complainant stated that she was depressed
and nervous due to the agency's discriminatory actions and that she lost
a significant amount of weight.  Complainant's colleague, the Acting
Field Health Officer at the Sioux San Hospital (CW), corroborated
this testimony, noting that in the two years following the agency's
discriminatory actions, complainant experienced significant weight loss.
Indeed, in its response to complainant's appeal, the agency acknowledged
that complainant provided sufficient evidence, through the statement
of CW, to show a nexus between the weight loss, the need for a new
prosthesis, and the discrimination.  To justify its failure to reimburse
complainant for this expense, the agency argued that complainant failed to
provide a receipt for the prosthesis.  A review of the record reveals,
however, that complainant provided an invoice from her Certified
Prosthetist which noted that complainant's significant weight loss as
of December 1999 required her to purchase a new prosthesis and that
the billed amount for this prosthesis was $24,369.00.  Complainant is
therefore entitled to the amount of $24,369.00 for this expense.

Living Centered Program

The agency concluded that complainant failed to provide sufficient
evidence to establish that the expenses she incurred due to treatment
sought at the Living Centered Program was related to the agency's
discriminatory actions.  While it is true that the letter from the Living
Centered Program does not indicate why complainant sought treatment there
in September 1999, in a statement provided to the agency, complainant
noted that she entered into this program because of mood swings,
withdrawal and other unhealthy emotional behavior she was experiencing.
She notes in this same statement that she suffered from depression,
lack of sleep, nervousness and emotional pain and anguish due to the fact
that the agency stripped her of her position as Community Health Director
and changed her duty station.  Although there is also evidence that she
sought treatment due to the stress of dealing with the EEO process  and
emotional distress caused by incidents not found to be discriminatory
by the agency or this Commission<2>, complainant has established that
the agency's discriminatory actions partially motivated her to seek
treatment at the Living Centered Program.

The record establishes that complainant paid $1,615.00 to attend the
program between September 3-10, 1999, which included group therapy
workshops, lodging and meals.  Based on the evidence provided,
we find that complainant is entitled to reimbursement for half of
this amount--$807.50.  Although complainant also submitted separate
receipts from a hotel, she offers no explanation for why she incurred
these expenses, as the documentation from the Living Centered Program
indicates that their fee included lodging and meals.  Furthermore,
the record also includes what appears to be a receipt for an airline
ticket,  but this receipt has neither a legible date nor a destination
and therefore cannot be used to substantiate complainant's claim for
reimbursement of travel expenses to the Living Centered Program.

Accordingly, we find that complainant is owed a total of $35,866.40 in
past pecuniary damages.  In so finding, we note that we have considered
arguments and evidence raised by complainant but not discussed above,
such as her claim for reimbursement of hospital expenses incurred in
February 1999.   As complainant provided no documentation of these
expenses, we cannot award her compensation.  See Hogeland, supra.

Future Pecuniary  Damages

Complainant argues that her non-selection for a position for which she
applied in  April 1998 was directly caused by the fact that the agency
had discriminated against her when it downgraded her and changed her
duty station.  She argues that the agency failed to provide her with a
job description or any documentation to verify the responsibilities of
the position she was in after her downgrade and change of station and
that she was therefore unable to provide the information necessary to be
considered for a different position.   In so arguing, she notes that the
agency's failure to provide evidence of hours worked was a "continuation
of the discrimination" she faced and requests $75,000 in compensation.

We agree with the agency's determination that complainant failed to
establish that any loss she incurred due to her failure to be selected
for the April 1998 position was caused by the actions found to be
discriminatory. Neither the non-selection, nor the alleged failure to
provide complainant with evidence of the hours she worked was found to
be discriminatory. Complainant is only entitled to receive compensatory
damages for damages she incurred due to proven discrimination.

Non-pecuniary Damages

There are no definitive rules governing the amount of non-pecuniary
damages to be awarded.   Non-pecuniary damages must be limited, however,
to the sums necessary to compensate the injured party for actual harm,
even where the harm is intangible.  The existence, nature, and severity
of emotional harm must be proved.  See Compensatory Damages Notice,
at 11.  Emotional harm may manifest itself, for example, as anxiety,
stress, depression, marital strain, humiliation, emotional distress,
loss of self esteem, excessive fatigue, or a nervous breakdown.  Id.
A proper award should take into account the severity of the harm and the
length of time that the injured party suffered the harm.  See Carpenter
v. Department of Agriculture, EEOC  Appeal No. 01945652 (July 17, 1995).
Finally, 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 Jackson v. United States Postal Service, EEOC Appeal No. 01972555
(April 15, 1999), citing Cygnar v City of Chicago, 865 F.2d 827, 848
(7th Cir. 1989).

In the case at hand, complainant provided a statement indicating that
the agency's discriminatory actions caused depression, sleeplessness,
loss of weight, nervousness, and emotional strain. She further noted
that it caused her to be unable to manage her home life and rendered her
uncommunicative, hostile and withdrawn, as well as frustrated and angry.
Complainant's statement is corroborated by that of CW, who stated in
December 1999 that in the two years since the agency's discriminatory
conduct, complainant was withdrawn and showed signs of depression, in
addition to suffering a significant weight loss.  Another professional
colleague (CW2), a doctor at Sioux San Hospital, stated that he noticed in
the two years since the agency's discriminatory actions that complainant
was depressed and suffered a weight loss.   The record establishes,
through the statements of complainant and her colleagues, that complainant
experienced these emotional difficulties for about 2 and ½  years.

In determining that complainant was entitled to $15,000.00 in
non-pecuniary damages, the agency noted that some of the depression
complainant experienced was due to incidents not found to be
discriminatory, such as lack of communication with her supervisor
subsequent to her change of duty station and stress caused by
participating in the EEO process.  The agency also noted that none of
complainant's witnesses provided independent evidence that the emotional
harm complainant suffered was caused by the agency's discriminatory
actions.  Finally, the agency noted that the record did not establish
that complainant sought medical treatment of counseling for any of
her emotional distress and therefore concluded that the emotional harm
suffered was not severe.

The agency's position that complainant failed to provide corroboration
of her claim that her emotional distress was caused by the agency's
discriminatory actions is not well-taken.   As the agency itself notes
in its response to complainant's appeal, a complainant's own testimony
is sufficient to establish the existence of non-pecuniary losses, as
well as the severity and duration of those losses.  See James v. United
States Postal Service, EEOC Appeal No. 01944466 (October 5, 1994).
Furthermore, complainant did provide corroboration of her statement
that her emotional harm was a result of the agency's discrimination.
CW stated that she observed that since the downgrade, complainant showed
signs of depression and had lost a significant amount of weight and
noted that she felt that complainant's poor health was directly related
to complainant's feelings of ineffectiveness in her current assignment.

The agency's reliance on its determination that, because complainant
did not seek medical treatment her emotional distress was not severe is
also misplaced.  Complainant provided evidence in the form of her own
statement and the statements of CW and CW2 which establishes that for a
period of 2 ½ years she experienced a variety of emotional problems due to
the agency's discrimination.  CW and CW2 both stated that complainant's
visible distress caused them to urge her to seek professional counseling
and/or medical help.  Furthermore, complainant stated that she did seek
help in stabilizing her mental health from a traditional healer, from
whom she received treatment for a period of several months.

Several Commission decisions have awarded compensatory damages in cases
somewhat similar to complainant's.  See, e.g., Terrell v. Department
of Housing and Urban Development, EEOC Appeal No. 01961030 (October 25,
1996) ($25,000.00 in non-pecuniary damages where complainant presented
evidence of numerous emotional problems caused to a some extent by the
agency's discrimination and lasting for approximately 18 months); Bernard
v. Department of Veterans Affairs, EEOC Appeal No. 01966961 (July 17,
1998) ($80,000.00 in non-pecuniary damages where complainant, through his
own testimony and the testimony of friends and family presented evidence
that over a five year period he experienced symptoms of depression, as
well as headaches, ringing in his ears, vomiting, raised blood pressure,
grinding of teeth and insomnia due to the agency's discrimination);
Hatton v. United States Postal Service, EEOC Appeal No. 01985377 (June 6,
2000) ($25,000 in non-pecuniary damages based on complainant's testimony
as to emotional injury suffered, manifested by prolonged feelings of
frustration, anger, loss of self-esteem, and betrayal);   Holliday
v. Department of  Agriculture, EEOC Appeal No. 01A03047 (June 12, 2002)
($50,000 in non-pecuniary damages based on testimony from complainant,
co-workers and family that she suffered emotional stress daily for
14 months).

In determining the amount of non-pecuniary damages to which complainant
in the case at hand is entitled, the Commission has considered that
complainant has suffered from the effects of the discrimination for
approximately 2 and ½ years.  We have considered that these effects have
included depression, sleeplessness, nervousness, anger, and frustration,
among other things, and have interfered with complainant's relationship
with her family, her self-esteem and her physical well-being.  We have
also considered that some portion of complainant's emotional distress
stems from incidents not found to be discriminatory or not otherwise
compensable, such as stress caused by the processing of complainant's
EEO complaint.  Finally, we take into consideration amounts awarded
in similar cases and the goals of compensatory damages.  Based on
these factors, the Commission finds that complainant is entitled to
non-pecuniary damages in the amount of $40,000.00.

ORDER

The agency is ORDERED to take the following remedial action:

Within thirty (30) calendar days of the date that this decision becomes
final, the agency shall issue a check to complainant in the amount of
$75,866.40 for compensatory damages, less any amount already paid.
The agency is further directed to submit a report of compliance,
as provided in the statement below entitled "Implementation of the
Commission's Decision."  The report shall include evidence that the
corrective action has been implemented.

ATTORNEY'S FEES (H0900)

If complainant has been represented by an attorney (as defined by
29 C.F.R. § 1614.501(e)(1)(iii)), he/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 (R0900)

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 (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


August 28, 2002
Date


1 Compensatory damages and attorney's fees
are not available to a complainant alleging discrimination solely
under the ADEA.  See Taylor v. Department of the Army, EEOC Request
No. 05930633 (January 14, 1994).  As noted above, the agency determined
that complainant was subjected to age and sex discrimination and she
therefore is entitled to proven compensatory damages under Title VII.
See West v. Gibson, 527 U.S. 212 (1999).

2 Compensatory damages are not available for stress caused by
participating in the EEO
process.  See Appleby v. Department of the Army, EEOC Appeal No. 01933897
(March 4, 1994).

�

Fighting for distinctively different claims should not lower the EEOC award

If the maximum award for each EEOC claim is $300,000 (this amount is older than 20 years, and has not been updated)and the EEOC claim has more than 1 discrimination, the final award should not reflect the discrimination you could not prove, rather it should be for the claims you did prove. While the AJ, EEOC lawyer and the federal agency earn their money for reducing the amount of the claim, through mathematical deductions of time, pre-existing medical conditions, comparing other cases awarded for similar discrimination's, it all seems like an unfair advantage the government has over the complainant.

In cases where claims are distinctly different, “work on an unsuccessful
claim cannot be deemed to have been expended in pursuit of the ultimate
result achieved.”  

Hensley v. Eckerhart, 461 U.S. 424, 435 (citation omitted).  

However, in cases where a claim for relief involves “a common core of facts or will be based on related legal theories” a fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit.  Id.  “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, at 11-16 (citation omitted).

The degree of success is an important factor in calculating an award of attorney's fees.  

Farrar v. Hobby, 506 U.S. 103 (1992).  

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, she should 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.   Where the Complainant achieved only limited success, Complainant should receive only the amount of fees that is reasonable in relation to the results obtained.  

Hensley v. Eckerhart, 461 U.S. 424 (1983); 

Cemy v. Dep’t of the Navy, EEOC Request No. 05930899 (Oct. 19, 1994).

What is the race plus theory?

Just because your EEOC discrimination claim for promotion  concerns race discrimination's, it may not be enough if the federal agency claims all candidates for promotion were all the same race. Instead, you may need the race plus theory, if you can prove it.

In Ida Bruce McMillian v Department of Transportation (Appeal No. 07A40088) The agency claimed the candidates were all African American's, and that it proved no prima facie was established.

There was evidence presented that complainant's race coupled with his sex was a factor in complainant's nonselection. Accordingly, based on a “race plus” theory, complainant established a prima facie case of discrimination, since the selectee, an African American female, was outside of complainant's protected group of African American male. 

Ida Bruce McMillian,
Complainant,

v.

Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.



Agency No. 2-02-2016

Hearing No. 110-2003-08460X

Anti-reprisal provision of Title VII provides exceptionally broad protection

Reprisal from engaging in EEOC activity is a discrimination that seems to have a huge interest in federal employees coming to this blog. Is there a connection in the amount of EEOC claims submitted that invoke the protection of Title VII for retaliation claims? Not certain yet, but here is some information about retaliation claims broad protection that may alarm you.

WARNING: If you are being discriminated in your workplace by a superior, and you file an EEOC claim against them, they will retaliate against you, especially if they know you went to the EEOC. The hostile work environment will become worse, before it gets better.

While you might be retaliated against, lose your bonus, lose your promotion, get demoted or transferred, or even be wrongfully terminated or separated, because you helped a fellow federal employee with their EEOC claim, or you filed an EEOC claim of your own.

The point is not to be scared for filing an EEOC claim, but to know that if there is a discrimination in your workplace, that they will be coming for you, to retaliate against you. The best thing you could do might be to invoke FMLA as long as you can (to get away from the hostile work environment), or at a minimum, call in sick. Perhaps the EEOC, in the future can provide a safe house, or someplace you can seek refuge, once you invoked your right to report discrimination. If you are reporting your superior, this could be trouble.


Standing up to the bully is never an easy thing.


We find this evidence sufficient to establish that complainant had engaged in EEO  protected activity.  The anti-reprisal provision of Title VII protects those who participate in the EEO process as well as those who
aid others in exercising their EEO rights.

Because the enforcement of Title VII depends on the willingness of employees to oppose unlawful
employment practices or policies, courts have interpreted section 704(a) of Title VII as intending to provide “exceptionally broad protection” to those who oppose such practices.  Based on the exceptionally broad
protection of Title VII, we find the evidence of record sufficient to support the AJ's finding that the “counseling” complainant provided to the agency employee was protected EEO activity.

Protections from hostile work environment at the time of filing an EEOC claim of discrimination against a federal employee of superior position should somehow be grounds enough to modify: Compensatory damages are not available for stress caused by participating in the EEO process. See Appleby v. Department of the Army, EEOC Appeal No. 01933897 (March 4, 1994).

Why does EEOC always cite Bernard v, Department of Veterans Affairs?

When the EEOC decides to award a complainant with documented  mental anguish and health issues caused by the discrimination, or made worse from the discrimination, they always seem to reference and cite Bernard v, Department of Veterans Affairs. While Bernard was awarded $80,000, the EEOC always gives less when they use Bernard's case, by associating it with the lesser awarded Wallis v. U.S. Postal Service, EEOC Appeal No. 01950510 (November 13, 1995). 


To figure out why the EEOC AJ cites Bernard, we must first question what was the reference case and award that was used before the 1998 Bernard v. Department of Veterans Affairs, EEOC Appeal No. 01966861 (July 17, 1998)?

If the reason the EEOC AJ's keeps using Bernard, has to do with the dollar award amount plus health condition component, perhaps the EEOC should make a new award level that is relevant to cost of living, inflation and the fact that awards in 1998 should not be used in 2014.

See, e.g., Bernard v. Department of Veterans Affairs, EEOC Appeal No. 01966861 (July 17, 1998) ($80,000 in non-pecuniary damages where complainant presented evidence that he experienced symptoms
of depression, as well as headaches, ringing in his ears, vomiting, elevated blood pressure, grinding of his teeth, and insomnia due to the agency's discriminatory actions);

Wallis v. U.S. Postal Service, EEOC Appeal No. 01950510 (November 13, 1995) ($50,000 award for non-pecuniary damages where the agency retaliated against complainant, which resulted in exacerbation of a preexisting mental condition, loss of reputation, injury to credit standing, emotional distress, loss of enjoyment of life, and loss of health.)

Here, complainant testified that the agency's action exacerbated his pre-existing condition of depression and anxiety disorder and resulted in the increase dosage of his medications from his physician. Complainant
further testified that the discrimination has resulted in physical and emotional difficulties including: a strained relationship with family; sleeplessness; humiliation; stress; irritability; injury to reputation; and weight loss. The record also contains progress reports from complainant's medical providers dated September 2002 to
October 2003 which support complainant's claim that his medication dosage was increased and that he has experienced: anxiety, depression, sleeplessness, irritability and stress which were reportedly job related.
The notes include statements such as, “[complainant] is feeling anxious and disappointed at his employer,” “[complainant] is apprehensive with his job setting,” and “[complainant] explains that his job has been
the source of stress.”  We find that there is substantial evidence in the record to support the AJ's award of $50,000 in compensatory damages. Accordingly, we order the agency to pay complainant $50,000 in
non-pecuniary compensatory damages.

What is a superior contribution increase (SCI)?

The superior contribution increase (SCI) is the name of some type of federal agency EEOC bonus system, with varying award levels. While most federal agencies have an annual bonus, some federal employees don't receive it for discrimination reasons, and some because they truly are undeserving. Some federal agencies give bonuses, even when none of the federal agencies deserve it. i.e. U.S. Veterans Administration

In the following case, the complainant won his EEOC claim and was awarded his bonus.

Within sixty  (60) calendar days of the date this decision becomes final, the agency shall give complainant a Superior Contribution Increase - 2 Award. The agency shall determine the appropriate amount of complainant's  SCI-2 award with interest.
 

Ida Bruce McMillian v. Department of Transportation
07A40088
09-28-04
.



Ida Bruce McMillian,
Complainant,

v.

Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.

Appeal No. 07A40088

Agency No. 2-02-2016

Hearing No. 110-2003-08460X

DECISION


Following its March 12, 2004 final order, the agency filed a timely
appeal which the Commission 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 of discrimination. For
the following reasons, the Commission reverses the agency's final order.

Complainant, an Equal Employment Opportunity Specialist employed at the
agency's Office of Civil Rights, FAA Southern Region facility, filed a
formal EEO complaint with the agency alleging that he was subjected to
discrimination on the bases of race (African-American) and sex (male)
when:

He was not selected for the position of EEO Specialist (Mediator) on or
about September 29, 2001.

The complainant also alleged that he was subjected to discrimination and
a hostile work environment on the bases of race (African-American), sex
(male), and in reprisal for prior EEO activity when:

He was not awarded a Superior Contribution Increase (SCI);

A group cash award was reduced from one thousand ($1,000) to five hundred
($500.00) dollars.


At the conclusion of the investigation, complainant was provided a
copy of the investigative report and requested a hearing before an AJ.
The AJ held a hearing on October 21 and 22, 2003 and  issued a bench
decision on November 17, 2003.

In the bench decision, the AJ found that the agency discriminated
against complainant on the bases of race and sex when it failed to
select complainant for the position of EEO Specialist Mediator and
on the basis of reprisal when it did not award complainant a Superior
Contribution Increase. The AJ found that complainant was not subjected
to discrimination when a group cash award was reduced from one thousand
($1,000) to five hundred dollars ($500.00) and was not subjected to a
hostile work environment due to race, sex or reprisal discrimination.<1>

The agency's final order rejected the AJ's finding of discrimination. On
appeal, the agency made numerous arguments regarding AJ errors.
The agency argued that the AJ erred in finding that the complainant
established a prima facie case of race discrimination since the selectee,
like complainant, was African American.  Even assuming arguendo, that
complainant established a prima facie case of race discrimination, the
agency argued that the AJ ignored the identification of the agency's
legitimate nondiscriminatory reason for its actions. The agency also
argued that the AJ erred in finding that complainant had engaged in
protected EEO activity because the activity in which complainant engaged,
counseling an agency employee regarding his EEO rights, was part of
complainant's official work duties. Even assuming the AJ's finding is
correct, the agency argued that compensatory damages in the amount of
$50,000 is contrary to norm.

Complainant filed a brief contending that the AJ's decision correctly
summarized the facts and reached the appropriate legal conclusions.

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.

With regard to the nonselection, the evidence revealed that there were
eight vacancies for the mediator positions in various states.  All of
the vacancies, with the exception of one, were located in offices where
the person who had been performing the mediation duties was an African
American<2>. Complainant, an African American male, was performing
the mediator duties in College Park, Georgia, and he applied for the
mediator position in this designated region. Each designated region
had a different selecting official. While there were eight different
selecting officials, the approving official was the common thread that
bounded all of the selections.<3>

Turning to the agency's contentions on appeal, we find no basis to
disturb the AJ's finding. There was evidence presented that complainant's
race coupled with his sex was a factor in complainant's nonselection.
Accordingly, based on a “race plus” theory, complainant established
a prima facie case of discrimination, since the selectee, an African
American female, was outside of complainant's protected group of African
American male. <4>

With respect to the agency's argument that the agency ignored the agency's
legitimate nondiscriminatory reason,  we disagree.  The record reveals
that the agency articulated several legitimate nondiscriminatory reasons
for its actions. The AJ concluded, based upon substantial evidence,
that the agency's articulated reasons were not the true reasons for
its action. The agency articulated that the selecting official for
each designated region made the selection without any prompting from
the approving official. The approving official's role was limited to
concurring in the selections made. With regard to the specific selection
at issue here, that agency articulated that the selectee was chosen
because she was the “best qualified.”

All of the agency's articulated reasons were flatly denied by the
selecting official for the particular selection at issue here. This
selecting official testified: that the approving official harbored a
discriminatory animus toward African Americans in general, and African
American males in particular; and that the approving official unduly
influenced his selection decision and set parameters for the selection
including a preference for “fresh blood,” a “new face” and someone with
“higher credentials.”  The selecting official testified that he would have
selected the complainant because of his qualifications and demonstrated
success in performing the mediator duties, but based on the parameters set
by the approving official, he presented the complainant and an external
candidate to the approving official for approval. The selecting official
testified that the external candidate was “credentialed” but that he
would have chosen complainant. He further testified that the approving
official ignored his expressed preference to select complainant, and
directed him to hire the external candidate. The selecting official
testified that the approving official had problems working with him,
complainant,  and other African Americans and at the time she directed
him to hire the external candidate, the approving official was not aware
that the external candidate was African American.

While the approving official denied the selecting official's allegations
and asserted that she did not suggest or direct whom should be hired for
the positions, the AJ did not credit the approving official's testimony.
The AJ found the selecting official's testimony to be more credible and
supported by the record evidence. In so finding, the AJ found it suspect
that not one of the seven African Americans who had been performing the
mediation duties, and who applied for the permanent mediator position,
was selected. However, the only white female who had been performing the
mediator duties, and who applied for the permanent mediator position,
was selected.  Moreover, the racial composition of the persons performing
the mediator duties shifted dramatically.  Prior to these selections, 7
out of  8 persons who performed the mediator duties in these designated
regions were African American. Following the selections, only 1 out of
8, was African American.

Based on the credibility determinations made by the AJ, the contradictory
testimony of management officials regarding the proffered explanations,
and the actual results of the selections, we find that there is
substantial evidence in the record to support the AJ's finding.

With regard to complainant's reprisal claim, we concur with the AJ's
finding that the counseling complainant provided to a co-worker was
protected activity notwithstanding the fact that the counseling was
provided as part of complainant's official work duties. The record
establishes that complainant counseled an agency employee regarding his
EEO rights and shortly thereafter the employee filed an EEO complaint
naming the complainant's acting immediate supervisor as one of the
responsible management officials. The issue involved the removal of a
merit promotion packet from complainant's office by complainant's acting
immediate supervisor.  Hence, it appears complainant's involvement in
the dispute went beyond his official duties. There was evidence presented
that complainant's acting immediate supervisor was aware that complainant
counseled the employee and believed that complainant had encouraged the
employee to file an EEO complaint naming her as one of the responsible
management officials.  There was also evidence presented that the acting
supervisor called complainant an “instigator” based on his purported role
in encouraging the agency employee to file an EEO complaint and that the
supervisor asked an employee to find out if complainant was indeed behind
the EEO complaint filed by the agency employee.  During the same time
period, the acting supervisor evaluated employees including complainant,
to determine whether to recommend them for a Superior Contribution
Increase (SCI) award and the supervisor did not recommend complainant
for a SCI award.

We find this evidence sufficient to establish that complainant had engaged
in EEO  protected activity.  The anti-reprisal provision of Title VII
protects those who participate in the EEO process as well as those who
aid others in exercising their EEO rights.  Because the enforcement of
Title VII depends on the willingness of employees to oppose unlawful
employment practices or policies, courts have interpreted section 704(a)
of Title VII as intending to provide “exceptionally broad protection”
to those who oppose such practices.  Based on the exceptionally broad
protection of Title VII, we find the evidence of record sufficient to
support the AJ's finding that the “counseling” complainant provided to
the agency employee was protected EEO activity.

With regard to the agency's claim that the award of $50,000 in
compensatory damages is excessive, we find that the award is supported by
substantial evidence of record and meets the goals of not being motivated
by passion or prejudice, not being “monstrously excessive” standing alone,
and being consistent with amounts awarded in similar cases in terms of
harm sustained. See, e.g., Bernard v. Department of Veterans Affairs,
EEOC Appeal No. 01966861 (July 17, 1998) ($80,000 in non-pecuniary
damages where complainant presented evidence that he experienced symptoms
of depression, as well as headaches, ringing in his ears, vomiting,
elevated blood pressure, grinding of his teeth, and insomnia due to the
agency's discriminatory actions); Wallis v. U.S. Postal Service, EEOC
Appeal No. 01950510 (November 13, 1995) ($50,000 award for non-pecuniary
damages where the agency retaliated against complainant, which resulted
in exacerbation of a preexisting mental condition, loss of reputation,
injury to credit standing, emotional distress, loss of enjoyment of life,
and loss of health.)

Here, complainant testified that the agency's action exacerbated his
pre-existing condition of depression and anxiety disorder and resulted in
the increase dosage of his medications from his physician. Complainant
further testified that the discrimination has resulted in physical
and emotional difficulties including: a strained relationship with
family; sleeplessness; humiliation; stress; irritability; injury
to reputation; and weight loss. The record also contains progress
reports from complainant's medical providers dated September 2002 to
October 2003 which support complainant's claim that his medication
dosage was increased and that he has experienced: anxiety, depression,
sleeplessness, irritability and stress which were reportedly job related.
The notes include statements such as, “[complainant] is feeling anxious
and disappointed at his employer,” “[complainant] is apprehensive with
his job setting,” and “[complainant] explains that his job has been
the source of stress.”  We find that there is substantial evidence
in the record to support the AJ's award of $50,000 in compensatory
damages. Accordingly, we order the agency to pay complainant $50,000 in
non-pecuniary compensatory damages.

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 remands the matter to the agency
to take corrective action in accordance with this decision.


ORDER (D0403)

The agency is ordered to take the following remedial action:

 Within thirty (30) calendar days of the date this decision becomes
 final, the agency is directed to promote complainant to an EEO Specialist
 Mediator position, or to a substantially equivalent position, retroactive
 to September 29, 2001.

 Within sixty  (60) calendar days of the date this decision becomes final,
 the agency shall give complainant a Superior Contribution Increase - 2
 Award. The agency shall determine the appropriate amount of complainant's
 SCI-2 award with interest.

 Within sixty  (60) calendar days of the date this decision becomes final,
 the agency shall award complainant compensatory damages in the amount
 of $50,000.

 The agency shall provide training in the obligations and duties imposed
 by Title VII to the management officials responsible for the actions
 at issue.  The Commission does not consider training to constitute a
 disciplinary action.

 The agency shall consider taking disciplinary action against the
 management officials  responsible for the actions at issue.  The agency
 shall report its decision.  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.


The agency shall determine the appropriate amount of back pay, with
interest, 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.  The 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 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 of the
agency's calculation of back pay and other benefits due complainant,
including evidence that the corrective action has been implemented.


POSTING ORDER (G0900)

The agency is ordered to post at its Federal Aviation
Administration-Southern Region, Departmental Office of Civil Rights,
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 (H0900)

If complainant has been represented by an attorney (as defined by 29
C.F.R.1614.501(e)(1)(iii)), he/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 (R0900)

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 (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

___09-28-04_______________
Date



U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, D.C.  20507



POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government

This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated            which found that a
violation of the Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. § 2000e et seq. (Title VII), has occurred at the Federal Aviation
Administration-Southern Region, Departmental Office of Civil Rights.

Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges
of employment.  The Federal Aviation Administration-Southern Region,
Departmental Office of Civil Rights, confirms its commitment to comply
with these statutory provisions.

The Federal Aviation Administration-Southern Region, Departmental Office
of Civil Rights, supports and will comply with such Federal law and will
not take action against individuals because they have exercised their
rights under law.

The Federal Aviation Administration-Southern Region, Departmental
Office of Civil Rights, was found to have discriminated against an
employee when it did not select the employee for the position of EEO
Specialist Mediator and when it did not award the employee a Superior
Contribution Increase. The Federal Aviation Administration-Southern
Region, Departmental Office of Civil Rights, was ordered to: retroactively
promote the affected employee to the EEO Specialist Mediator position,
or to a substantially equivalent position, with back pay, and interest;
award the employee a Superior Contribution Increase; and provide
other benefits to which the employee may be entitled under federal
law in connection with his complaint, including proven attorney's
fees and costs and proven compensatory damages. The Federal Aviation
Administration-Southern Region, Departmental Office of Civil Rights,
will ensure that officials responsible for personnel decisions and
terms and conditions of employment will abide by the requirements of
all Federal equal employment opportunity laws.

The Federal Aviation Administration-Southern Region, Departmental Office
of Civil Rights, will not in any manner restrain, interfere, coerce,
or retaliate against any individual who exercises his or her right to
oppose practices made unlawful by, or who participates in proceedings
pursuant to, Federal equal employment opportunity law.


                          _______________________________
Date Posted: ____________________
Posting Expires: ________________


1 Note that the AJ's finding with regard to this issue will not be
addressed herein because complainant did not appeal this issue.

2 Complainant was the only male and only African American male performing
the mediator duties in the eight designated offices.

3 Complainant identified the approving official as the involved management
official.

4 We agree with the agency that the AJ  incorrectly relied on a disparate
impact rather than a disparate treatment case to conclude that complainant
established a prima facie case of race discrimination with regard to
the nonselection. However, we find that the AJ's ultimate conclusion
was correct for the reasons set forth herein.

�

Sutter fought out discrimination for several years before being awarded by EEOC

While doing a search for stress, mental illness and grinding of the the teeth (bruxism), I found this EEOC claim, that was awarded to J. catherine Sutter $10,000 in non-pecuniary damages (within 60 days of this order), $62,582.11 in attorney's fees and $2,709.48 in costs (within 60 days of this order). restore annual and sick leave.


J. Catherine Sutter,
Complainant,

v.

Hilda L. Solis,
Secretary,
Department of Labor,
(Occupational Safety & Health Administration),
Agency.

Appeal No. 0120080937

Hearing No. 100-2004-00545X

Agency No. 03-11-159

DECISION

On December 13, 2007, Complainant filed an appeal from the Agency’s
November 13, 2007 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., Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. §
621 et seq.  The appeal is deemed timely and is accepted pursuant to
29 C.F.R. § 1614.405(a).  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 Program Analyst at the Agency’s Headquarters in Washington, D.C.
Complainant has asthma and various heart conditions.  In January 2002,
Complainant had open-heart surgery.  The medications needed to treat
Complainant’s heart conditions and asthma conflicted.  After the
surgery, Complainant’s condition did not improve and subsequently, her
breathing became labored and her energy level diminished.  Additionally,
Complainant had difficulty walking and talking and passed out at times.
In March 2002, Complainant requested to work at home full-time because her
recuperation from the surgery was difficult.  Her request was partially
granted and she was allowed to work at home full-time for several weeks.

In April 2002, Complainant returned to the office five days a week;
however, because her health did not improve, she requested to work at
home two days a week.  The request was granted as there was some work
that she could complete at home.  In May 2002, Complainant visited
New Mexico to see how the air in that area affected her breathing.
Complainant found the conditions there beneficial and requested permission
to relocate to New Mexico.  The Agency denied her request; however,
the Acting Director (AD) told her that he would look into assigning her
to a detail in New Mexico.  Subsequently, he learned that the Agency
did not have an office in New Mexico into which she could be detailed.
In October 2002, the Agency reorganized and Complainant was moved to
another office.  Beginning in February 2003, Complainant was assigned to
be the Agency’s internet communications gatekeeper.  In this capacity,
Complainant responded to messages from the public received through the
Agency’s website and email system.  Complainant maintained that all
of these duties could be performed from home.

On April 25, 2003, Complainant submitted a written request to either
be transferred to Corpus Christi, Texas or to work full-time at home
as a reasonable accommodation.  AD denied both requests because he
did not believe Complainant could perform the essential functions
of her position in another city.  AD informed Complainant that she
could continue her current accommodation of working from home two days
each week.  The Agency asked Complainant to sign a medical release form
so that the Agency could review and evaluate her medical condition.
Complainant declined initially, but later agreed to a limited release
of her medical records.  During a meeting on June 12, 2003, AD told
Complainant that he would consider allowing her to work from home three
or four days a week, but he would like her to come into the office at
least one day a week.  Complainant rejected this proposal and requested
that she only be required to report to the office three days a month.
AD rejected this proposal and ordered Complainant to continue working
at home two days a week pending the results of the medical assessment by
the Public Health Service.  However, by the summer of 2003, Complainant
reported to the office on average only one day a week.

On September 25, 2003, Complainant filed an EEO complaint alleging that
she was discriminated against on the bases of sex (female), disability
(asthma/heart disease), and age (56) when the Agency failed to reasonably
accommodate her disability.

At the conclusion of the investigation, Complainant was provided with
a copy of the report of investigation (ROI) and notice of her right to
request a hearing before an EEOC Administrative Judge (AJ).  Complainant
timely requested a hearing and the AJ held a hearing on November 14,
December 6, and December 8, 2005, and issued a decision on July 25, 2007.

Initially, the AJ found that Complainant was an individual with a
disability and a qualified individual with a disability.  Next, the AJ
found that the Complainant’s claims involved two distinct periods:
the period from January 2002 to February 2003, and the period beginning
February 2003 to the present.  The AJ found that based on the series
of requests that began in early-to-mid 2002, Complainant requested of
the Agency an accommodation that would allow her to avoid the commute
into Washington, D.C.  The AJ found that during the period of May 2000
to February 2003, Complainant performed many duties which could not be
performed away from the office.  Accordingly, the AJ found that allowing
Complainant to work at home full-time was not a reasonable accommodation.
Following the Agency’s reorganization in October 2002 and by February
2003, Complainant performed duties which could be performed at home.
The AJ found that AD’s denial of both a transfer to Corpus Christi and
the request to work at home full-time constituted a failure to accommodate
Complainant’s disability.  The record revealed that Complainant was
able to perform her duties at home and the Agency failed to demonstrate
why her presence in the office was necessary.  However, the record
revealed that the Agency had accommodated Complainant after June 12,
2003 as Complainant was not required to report to the office more than
one day a week.  Therefore, the AJ concluded that the Agency had failed
to accommodate Complainant's disability for the period between February
2003 and June 12, 2003.

As to Complainant’s age and sex discrimination claims, the AJ found
that Complainant failed to demonstrate that similarly situated co-workers
outside her protected groups were treated differently.  As a result,
the AJ concluded that Complainant was unable to establish that she was
discriminated against with respect to those bases.

On September 18, 2007, the AJ held a hearing on damages and issued
a decision on September 28, 2007.  The AJ found that Complainant was
entitled to an award of $2,000 in nonpecuniary damages.  The AJ determined
that the only evidence (the testimony of Complainant and her son)
Complainant provided that connected the Agency’s actions to any mental
or physical injury she suffered concerned nightmares she experienced.
The AJ found, however, that more likely than not, Complainant's ongoing
medical conditions caused most of her stress.  The AJ noted that while
Complainant’s witnesses were credible, Complainant was less than
credible and her testimony was at times inconsistent.  The AJ determined
that there were additional considerations and life events which further
weakened and diminished any nexus between her emotional distress and
the symptoms she experienced.  The AJ determined that Complainant failed
to establish any other nexus between the Agency’s failure to provide
an accommodation from February 2003 to June 2003 and her physical and
mental conditions.  Accordingly, the AJ awarded Complainant $2,000 in
nonpecuniary damages to remedy the harm Complainant suffered due to the
Agency’s failure to provide an accommodation during the four-month
period.

Next, the AJ found that Complainant was not entitled to pecuniary
damages as she failed to show the necessary causal connection between
the discriminatory incidents and the medical expenses for which she
sought reimbursement.  The AJ determined that while it was true that
the discriminatory incidents could have exacerbated Complainant's
preexisting medical conditions, Complainant had not shown the necessary
causal connection between the discriminatory incidents at issue and her
claimed medical expenses.  Further, the AJ concluded that Complainant was
not entitled to reimbursement for the out-of-pocket expenses associated
with working at home as there was no nexus between the discrimination
and these costs.

As to sick and annual leave, the AJ found that the evidence showed that
during the four months in question, Complainant was forced to take sick
and annual leave when she was unable to report to her office due to
atmospheric conditions.  The AJ therefore ordered the Agency to restore
all sick and annual leave used between February 1, 2003 and June 12, 2003.
The AJ also ordered the Agency to provide training to AD and any other
management officials who participated in any decision to deny Complainant
reasonable accommodation during the period in question.

As to attorney’s fees, Complainant sought $139,306.96 in attorney’s
fees and $7,657.00 in costs.  The AJ reduced Complainant’s attorney’s
fees award by 10% for her unsuccessful attempt to establish age and
sex discrimination.  Additionally, the AJ found that since Complainant
only established a violation for a four-month period, an additional
50% across-the-board reduction was appropriate and awarded Complainant
$55,722.79 in attorney’s fees and $2,585.36 in costs.  Complainant
sought an additional $7,781.12 in attorney’s fees and $124.12 in
costs for post-initial decision fees and costs.  The AJ found that the
hours claimed (11.38) were excessive and reduced those hours to three.
Accordingly, the AJ awarded $6,859.32 in post-initial decision work and
$124.12 in costs.  As a result, the AJ awarded Complainant attorney’s
fees totaling $62,582.11 and $2,709.48 in costs.

The Agency subsequently issued a final order fully implementing the
AJ’s decision.

CONTENTIONS ON APPEAL

On appeal, Complainant alleges that the AJ erred when he found that it
was not a reasonable accommodation for the Agency to allow her to work at
home full-time from May 2000 to February 2003.  Complainant argued that
during the period in question, she could have performed the essential
functions of her duties away from the office.  Further, Complainant
asserts that the AJ erred in finding that allowing her to work from home
all but one day a week was an effective accommodation.

In regard to her sex and race discrimination claims, Complainant argues
that the AJ erred in finding that the comparator she named was not a
similarly situated employee.  Complainant contends that even though
her comparator works in the Atlanta Regional Office, he reports to
her supervisor, performs many of the same types of duties as her, and
is permitted to work full-time remotely from Atlanta.  Additionally,
Complainant notes that the AJ failed to address her race-based claim.

As to damages, Complainant contends that the AJ erred in awarding only
$2,000 in nonpecuniary damages.  Complainant asserts that the Agency's
discrimination caused her heart and asthma conditions to worsen.
Further, her emotional health suffered as she had to deal with the
stress and anxiety caused by the Agency’s discrimination.  This stress
manifested itself in Complainant grinding her teeth for which she had
to endure a tooth extraction.  Accordingly, Complainant claims that she
is entitled to an award greater than $2,000.  Likewise, she states that
she presented testimonial and documentary evidence supporting a causal
connection between the harm suffered and the Agency’s discrimination.

Finally, Complainant argues that the AJ erred in reducing the attorney’s
fees award by 60%.  She contends that although there were different bases
alleged there was only one issue for the Administrative Judge to decide.
Therefore, Complainant believes that AJ erred when he reduced the
attorney’s fees award by 60%.

The Agency asserts that the AJ properly reduced Complainant’s requested
damages award.  Accordingly, the Agency requests that we affirm the
final order.

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. Nat’l Labor Relations Bd.,
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614 (EEO MD-110), at 9-16 (Nov. 9, 1999).

Disparate Treatment (Sex and Age)1

In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process.  McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcester Found. for
Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), Reeves
v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000) (applying
the analytical framework described in McDonnell Douglas to an ADEA
disparate treatment claim).  First, Complainant must establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination; i.e., that a
prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802.  Next, the Agency must articulate a
legitimate, nondiscriminatory reason(s) for its actions.  Texas Dep’t
of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).  If the Agency
is successful, then the Complainant must prove, by a preponderance of
the evidence, that the legitimate reason(s) proffered by the Agency was
a pretext for discrimination.  Id. at 256.

After reviewing the instant record, the Commission agrees with the AJ that
Complainant has failed to establish a prima facie case of discrimination
on the bases of sex and age.  Complainant failed to identify similarly
situated individuals outside of her protected groups who were treated
more favorably.  Specifically, as to sex, Complainant identified an
employee as a comparator who serves as her backup and works from the
Agency’s Atlanta office.  The record reveals, however, that this
employee performed duties beyond those performed by Complainant and was
stationed in Atlanta because his duties included travel.  As to age, the
record reveals that Complainant reported to the office less frequently
that the identified comparators.  Therefore, the Commission concludes
that the AJ’s finding that Complainant was not discriminated based on
sex or age is supported by substantial evidence.

Reasonable Accommodation

Under the Commission's regulations, an agency is required to make
reasonable accommodation to the known physical and mental limitations of
a qualified individual with a disability unless the agency can show that
accommodation would cause an undue hardship. 29 C.F.R. §§ 1630.2(o)
and (p).

Upon review of the record, the Commission finds that, as to the period
beginning January 2002 and continuing to February 2003, the AJ’s
finding that Complainant was not denied reasonable accommodation is
supported by substantial evidence.  The record establishes that in
January 2002, Complainant was granted sick leave for her recuperation
from heart surgery.  Subsequently, some of Complainant’s assignments
were removed to allow Complainant to work from home two or three days
a week.  Complainant has not offered substantial evidence that this
was an ineffective accommodation.  Accordingly, the AJ’s finding that
Complainant was reasonably accommodated during this period is supported
by substantial evidence.

Next, Complainant argues that the AJ erred in finding that Complainant
had been accommodated by the June 2003 arrangement allowing her to
report to the office approximately one day a week.  The record reveals
that after the Agency’s reorganization in October 2002, Complainant was
reassigned to a new position with new duties.  The record establishes that
Complainant was able to perform all of her duties from home.  By mid-June
2003, Complainant was only reporting to the office no more than one day
a week.  Further, Complainant was permitted to work at home whenever
environmental conditions did not allow her to come into the office.
Although the actions taken by the Agency did not precisely mirror those
requested by Complainant, the Agency was not required to utilize the
means of accommodation preferred by Complainant.  The Agency may choose
among reasonable accommodations as long as the chosen accommodation
is effective.  See U.S. Airways v. Barnett, 535 U.S. 391, 400 (2002).
Complainant has presented no persuasive evidence that this arrangement
was an ineffective accommodation.  Accordingly, the AJ’s finding
that Complainant was reasonably accommodated beginning in June 2003 is
supported by the record.
Compensatory Damages

Next, when discrimination is found, the Agency must provide the
Complainant with a remedy that constitutes full, make-whole relief to
restore her as nearly as possible to the position she would have occupied
absent the discrimination.  See, e.g., Franks v. Bowman Transp. Co.,
424 U.S. 747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405,
418-19 (1975); Adesanya v. U.S. Postal Serv., EEOC Appeal No. 01933395
(July 21, 1994).  Pursuant to section 102(a) of the Civil Rights Act of
1991, a complainant who establishes unlawful intentional discrimination
under either Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. § 2000e et seq. or Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et
seq. may receive 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) as part of this “make whole”
relief. 42 U.S.C. § 1981a(b)(3).  In West v. Gibson, 119 S.Ct. 1906
(1999), the Supreme Court held that Congress afforded the Commission the
authority to award compensatory damages in the administrative process.
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. 42 U.S.C. § 1981a(b)(3)

Pecuniary Damages

Pecuniary damages are available for out-of-pocket expenses shown to be
related to the discriminatory conduct.  Typically these damages include
reimbursement for medical expenses, job hunting expenses, moving expenses,
and other quantitative out-of-pocket expenses.  The Commission requires
documentation in support of these expenses, typically in the form of
receipts, bills, or physicians' statements.  See Minardi v. U.S. Postal
Serv., EEOC Appeal No. 01981955 (Oct. 3, 2000); Gause v. Soc. Sec. Admin.,
EEOC Appeal No. 01972427 (March 8, 2000).  Past pecuniary losses are
those losses that are likely to occur before resolution of a complaint
and future pecuniary losses are losses that are likely to occur after
resolution of a complaint.  See Guidance at 8.

In his decision, the AJ found that Complainant was not entitled to
an award of pecuniary damages. The AJ determined that Complainant had
several preexisting medical conditions prior the discriminatory incidents
at issue. The AJ concluded that Complainant had not shown the necessary
causal connection between the incidents at issue and the medical expenses
for which she sought reimbursement.

Complainant requested $25,891.60 in past pecuniary damages and
$9,381 in future pecuniary damages.  Complainant asserts that the AJ
ignored the evidence presented connecting the discrimination to her
out-of-pocket medical expenses.  The Commission notes that Complainant
sought reimbursement for out-of-pocket expenses for working from home.
We note, however, Complainant’s working at home was not a result of
discriminatory actions, indeed working at home was the sought after
accommodation.  As to the other requested damages, the Commission agrees
with the AJ that Complainant failed to establish a causal connection
between the discrimination and the sought expenses.  In fact, much of
Complainant’s requested damages appear to be connected to continuing
treatment for her preexisting medical conditions, not from an exacerbation
of the preexisting conditions by the Agency’s discriminatory actions.
Accordingly, the Commission finds that substantial evidence supports
the AJ’s denial of pecuniary damages.

Non-pecuniary Damages

An award of non-pecuniary compensatory damages should reflect the extent
to which the Agency’s discriminatory action directly or proximately
caused the harm as well as the extent to which other factors also caused
the harm.  Johnson v. Dep’t of the Interior, EEOC Appeal No. 01961812
(June 18, 1998).  It is Complainant’s burden to provide objective
evidence in support of her claim and proof linking the damages to
the alleged discrimination.  Papas v. U.S. Postal Serv., EEOC Appeal
No. 01930547 (Mar. 17, 1994); Mims v. Dep’t of the Navy, EEOC Appeal
No. 01933956 (Nov. 24, 1993).  The Commission recognizes that not all
harms are amenable to a precise quantification; the burden of limiting the
remedy, however, rests with the employer.  Chow v. Dep’t of the Army,
EEOC Appeal No. 01981308 (Feb. 12, 2001).  Moreover, the amount of an
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.  Cygnar v. Chicago, 865 F.2d 827, 848
(7th Cir. 1989); EEOC v. AIC Sec. Investigations, Ltd., 823 F. Supp. 571,
574 (N.D. Ill. 1993).

In the instant case, the AJ found that Complainant had been discriminated
against when the Agency failed to reasonably accommodate her from February
2003 to June 2003.  The evidence presented by Complainant regarding the
nature, severity, and duration of the harm she suffered as a result
of the unlawful discrimination included her own testimony as well as
testimony from her son and a close friend.  The record reveals that
Complainant claims she suffers from insomnia, nightmares, and began
grinding her teeth as a result of the Agency’s discrimination.
The AJ found Complainant’s witnesses credible; however, he found
Complainant’s own testimony to be inconsistent.

Damage awards for emotional harm are difficult to determine, and there are
no definitive rules governing the amount to be awarded in given cases.
Based on the evidence of record, the Commission finds that an award of
$10,000 is appropriate in this case.  We note that this amount meets
the goals of not being motivated by passion or prejudice, not being
“monstrously excessive” standing alone, and being consistent with the
amounts awarded in similar cases.  See Minardi v. Dep’t of Homeland
Sec., EEOC Appeal No. 0120082652 (Oct. 16, 2008) (Commission awarded
$15,000 in nonpecuniary damages where Complainant suffered nightmares
and grinding of her teeth due to Agency’s discrimination); Baptieste
v. Dep’t of the Air Force, EEOC Appeal No. 01974616 (May 26, 2000)
($12,000 in nonpecuniary damages based on Complainant's and others’
statements of emotional distress due to Agency's discrimination); Eberly
v. U.S. Postal Serv., EEOC Appeal No. 07A30085 (May 20, 2004) ($10,000
awarded where Complainant experienced depression, sleeplessness, anxiety,
low self-esteem, and nightmares, but majority of symptoms were caused by
prior unrelated incident); McGraw v. Dep’t of Veterans Affairs, EEOC
Appeal No. 07A20121 (Nov. 27, 2002) ($15,000 for stress, depression,
and sleeplessness with evidence of other contributing factors); and
Caros v. Dep’t of Homeland Sec., EEOC Appeal No. 07A30094 (Feb. 19,
2004) ($10,000 awarded where complainant experienced an exacerbation
of physical ailments as well as low self-esteem, depression, anxiety,
and marital strain).

The Commission finds this case is analogous to the above referenced
cases with respect to the nature, severity, and duration of the harm.
After considering the nature of the Agency’s action, in conjunction
with Complainant’s evidence, the Commission finds that $10,000 is an
appropriate amount of non-pecuniary compensatory damages to be awarded.

Attorney’s Fees

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. 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).   The circumstances under which the lodestar may be adjusted are
extremely limited, and are set forth in EEO Management Directive 110.
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO MD-110) (Nov. 9, 1999).

In cases where claims are distinctly different, “work on an unsuccessful
claim cannot be deemed to have been expended in pursuit of the ultimate
result achieved.”  Hensley v. Eckerhart, 461 U.S. 424, 435 (citation
omitted).  However, in cases where a claim for relief involves “a
common core of facts or will be based on related legal theories” a
fee award should not be reduced simply because the plaintiff failed to
prevail on every contention raised in the lawsuit.  Id.  “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, at 11-16
(citation omitted).

The degree of success is an important factor in calculating an award of
attorney's fees.  Farrar v. Hobby, 506 U.S. 103 (1992).  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, she should 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.   Where the Complainant achieved only limited
success, Complainant should receive only the amount of fees that is
reasonable in relation to the results obtained.  Hensley v. Eckerhart, 461
U.S. 424 (1983); Cemy v. Dep’t of the Navy, EEOC Request No. 05930899
(Oct. 19, 1994).

Upon review the record, the Commission finds that the record supports the
AJ's decision with regard to the attorney's fees award and the Agency's
subsequent adoption of that decision in its final action.  Complainant
sought attorney's fees for a denial of reasonable accommodation that
allegedly occurred for approximately three years.  The AJ found that the
denial of reasonable accommodation encompassed the period of February
2003 to June 2003.  In light of the fact that the discrimination occurred
over a limited period of time relative to the amount of time alleged,
and that Complainant was unsuccessful in her age and sex-based claims,
the Commission finds that the AJ’s 60% reduction of the amount of
attorney’s fees awarded is supported by substantial evidence.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, the Commission MODIFIES
the Agency’s final order and REMANDS the matter to the Agency to comply
with the Order below to the extent that it has not already done so.

ORDER

The Agency shall take the following remedial actions:

1. Pay Complainant $10,000 in non-pecuniary damages within 60 days of
the date of receipt of this order.

2. Pay $62,582.11 in attorney’s fees and $2,709.48 in costs within 60
days of the date of receipt of this order.

3. Restore annual and sick leave used during the period of discrimination;

4. The Agency shall require that AD attend a minimum of eight hours of
EEO training on the laws prohibiting employment discrimination, paying
particular attention to agency’s obligations under the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. 791 et seq.

5. The Agency shall consider taking appropriate disciplinary action
against AD.  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).

6. The agency shall immediately post a notice in accordance with the
paragraph 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 that
the above payments have been made.  The Agency shall send a copy of the
report, with its supporting documentation, to Complainant.

POSTING ORDER (G0900)

The Department of Labor - Occupational Safety & Health Administration
is ordered to post at its Headquarters 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 (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 (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 tends 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 (Nov. 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


October 22, 2010
Date
1 Complainant notes that the AJ’s decision makes no reference to race
as a basis for discrimination although she contends that she did allege
race as a basis.  The record reveals, however, that race was not an
accepted basis during the complaint process nor did Complainant raise
any race-based allegations at the hearing.  Accordingly, the AJ was
correct to not address this issue in his decision.
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0120080937






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







Martin Luther King Jr.

Martin Luther King Jr.
Martin Luther King Jr.

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