• Saturday, June 16, 2012

    $158,000.00 awarded in EEOC case by AJ

    Thomas E. Cleland v. Veterans Affairs

    01970546; 01972227; 01975957

    August 9, 2000


    Thomas E. Cleland,



    Hershel W. Gober,

    Acting Secretary,

    Department of Veterans Affairs,


    Appeal Nos. 01970546; 01972227; 01975957

    Agency Nos. 92-1140; 92-1554; 92-1563;

    93-1739; 93-1742; 93-2139

    Hearing Nos. 130-94-8088X; 130-94-8089X; 130-94-8090X;

    130-94-8091X; 130-94-8092X; 130-94-80


    Complainant timely initiated three appeals to the Equal Employment
    Opportunity Commission (EEOC or Commission) from three final agency
    decisions (FADs) concerning complainant's claims of discrimination in
    violation of Title VII of the Civil Rights Act of 1964, as amended,
    42 U.S.C. § 2000e et seq. and Section 501 of the Rehabilitation Act of
    1973, as amended, 29 U.S.C. § 791 et seq.<1>  The appeal is accepted
    pursuant to 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29
    C.F.R. § 1614.405).<2>


    1. Whether complainant was discriminated against based on sex, disability,
    and reprisal when: (a) the agency failed to provide him with reasonable
    accommodations that would allow him to perform the essential functions
    of his position; and (b) he was made to sign in and was denied trips
    and assignments granted to other Recreation Therapists.<3>

    2. Whether complainant was discriminated against on the bases of
    disability and reprisal when: (a) on May 22, 1992, his request for
    renewed reasonable accommodation was put in abeyance; (b) on June 11,
    1992, his clinical privileges were terminated; and (c) effective January
    12, 1992, his employment with the agency was terminated.

    3. Whether complainant was discriminated against on the bases of
    disability and reprisal when: (a) the agency tried to intimidate
    complainant's expected witnesses; (b) settlement conferences were
    repeatedly rescheduled and subsequently canceled; (c) actions taken by
    the agency were not consistent with an EEO decision dated October 23,
    1992; and (d) complaints filed by complainant were improperly processed
    and investigated.

    4. Whether the agency correctly determined the amount of compensatory

    5. Whether the agency's reduction in attorney's fees was appropriate.


    Complainant, a male, states that he has various physical and mental
    impairments, including permanent reading and writing dysphasia, permanent
    dyslexia, permanent short-term memory loss, permanent neurological
    processing dysfunction, upper respiratory problems, and bilateral hearing
    loss.  Complainant began his employment with the agency on June 16, 1991,
    as a Recreation Therapist at the agency's Medical Center in Coatesville,
    Pennsylvania.  Complainant states that during his interview for the
    position, he informed the Chief of Recreation Therapy (“Chief”) that
    he has the above-referenced learning disabilities.  This position was
    complainant's first substantive employment after receiving his college
    degree and vocational training to manage his learning impairments.
    As indicated by its performance plan, the Recreation Therapist position
    required the individual to be able to complete service level treatment
    plans, update the treatment plans with progress notes, provide appropriate
    therapeutic recreational activities to patients, supervise patients in
    their therapeutic recreational activities, and provide other facility
    employees with details regarding the patient's recreational activities.

    By memorandum dated July 17, 1991, complainant made a request to the
    Chief for the following accommodations: (1) an extension of time for
    documentation; (2) printed forms with enlarged type settings; (3) a
    monthly planner with enlarged type settings; (4) a change of tour of
    duty to facilitate completion of documentation; (5) a scribe and reader,
    or alternatively a transcription service, to aid in the completing of
    charting; (6) a GE tape recorder; (7) a copy of the facility's Policy
    and Procedure Manual on a tape recording; (8) a quiet place to perform
    documentation; and (9) an opportunity to attend training seminars and/or
    conferences to improve clinical and writing skills.  Complainant provided
    the necessary documentation to support his request.  After receiving
    complainant's accommodation request, the Chief requested review by the
    facility's Ad Hoc Committee on Reasonable Accommodation which met on
    July 30, 1991.

    The Ad Hoc Committee submitted their recommendations on August 15, 1991,
    in which they approved all of complainant's requested accommodations
    except for the change of tour which was deferred until they could
    determine if the other accommodations had alleviated the need for the
    change.  The facility's Medical Director approved the recommendations.
    In October 1991, after conferring with his superiors and apparently
    without much explanation, the Chief informed complainant that he could
    not provide the accommodations recommended by the Ad Hoc Committee.
    The Chief informed complainant that he could seek aid from the facility's
    EEO Manager.  Complainant thereafter sought aid from the facility's EEO
    Manager, who required complainant to undergo a capability assessment by
    a facility physician.

    The facility physician issued a report in which he stated that he
    believed complainant could perform his duties with the assistance of
    standard formatting, a dictionary, and a three-point common phrase and
    word listing.  On December 10, 1991, the Ad Hoc Committee was reconvened
    to consider the facility physician's report.<4>  Complainant was not
    allowed to submit any additional information from his psychologist or
    vocational counselor.  As a result of the physician's report,  the Ad Hoc
    Committee revised its prior recommendations and substituted the following
    recommended accommodations: (1) extension of time for documentation;
    (2) enlarged printed forms; (3) enlarged monthly calendar; (4) a list
    of frequently used words and phrases; (5) a dictionary; (6) a GE tape
    recorder; and (7) a quiet place to perform charting.

    In January 1992, complainant made it known that he was considering
    filing an EEO complaint relating to the changes in the recommended
    accommodations.  Around the same time, the agency began documenting
    deficiencies in complainant's performance which later became the basis
    for his termination.  Among the incidents documented by the agency
    were the failure to complete medical charts, failure to complete
    observation/evaluation notes, failure to supervise patients, failure
    to screen patients and develop treatment plans, failure to develop and
    establish therapeutic recreation programs, failure to carry out orders
    by locking the Great Hall contrary to supervisory instructions, and
    falsely accusing another staff member of patient neglect.

    Also, in January 1992, after granting the accommodations recommended
    by the second Ad Hoc Committee, the Chief requested that complainant
    begin his charting duties.  Complainant questioned the extent he
    could perform his charting duties because he had not yet been granted
    clinical privileges.  On January 29, 1992, complainant submitted
    his initial application for clinical privileges.  The Subcommittee
    on Clinical Privileges recommended approval contingent upon receiving
    two acceptable appraisals from former supervisors, a copy of the Ad Hoc
    Committee's report granting reasonable accommodations, and an evaluation
    from his current supervisor.  On April 6, 1992, after receiving the
    necessary documentation, the Subcommittee recommended approval of
    clinical privileges and requested that complainant's current supervisors
    evaluate his ability to perform the privileges.  The Chief submitted
    a memorandum on May 19, 1992, stating that complainant was deficient
    in completing medical record documentation.  On May 29, 1992, based on
    his supervisor's evaluation, the Subcommittee withdrew its support for
    granting complainant's clinical privileges.

    Complainant's psychologist submitted a letter on March 17, 1992, stating
    that complainant needed the accommodations originally recommended by
    the Ad Hoc Committee.  On April 30, 1992, complainant submitted another
    request for accommodation.  By letter dated May 22, 1992, complainant was
    informed that his accommodation request was being held in abeyance pending
    a decision on whether he should be terminated during his probationary
    period.  The Chief issued to complainant a letter of proposed discharge
    on May 27, 1992.  On June 11, 1992, complainant received his notice of
    termination for failure to meet the requirements of the position.

    Believing he was a victim of unlawful employment discrimination,
    complainant filed six formal EEO complaints between March 9, 1992 and
    December 29, 1992, which contained the claims set forth above as Issues
    1-3.  Following investigations and consolidation of the complaints,
    complainant requested a hearing before an EEOC Administrative Judge
    (AJ).  Several witness provided relevant testimony.  The Assistant
    Chief of the Substance Abuse Unit, the unit in which complainant worked,
    testified that with the exception of the charting functions, she found
    complainant's performance entirely satisfactory.  Two co-workers testified
    that complainant's supervisor's actions toward complainant were noticeably
    more harsh than to other employees.  One of these employees confirmed that
    even after she admitted responsibility for the incident where the Great
    Hall was locked contrary to the supervisor's instructions, complainant was
    still blamed and chastised for the incident.  Other witnesses testified
    that complainant was a good therapist and that management's reasons for
    termination were unsupported by the facts.  In fact, after complainant's
    termination, several facility employees and patients submitted a petition
    to have complainant reinstated.  Following the hearing, the AJ issued
    a recommended decision (RD).

    The AJ found that complainant established a prima facie case of
    disability discrimination based on a failure to provide reasonable
    accommodation, in that he established through testimony and records
    that he has learning impairments which substantially limit his ability
    to learn, read and write; and that he is a "qualified individual with
    a disability," since he is qualified for and can perform the essential
    functions of the position in question with reasonable accommodation.
    The AJ then concluded that the agency failed to provide any credible
    justification for its failure to accommodate complainant's disabilities.
    While the AJ found disability discrimination regarding the failure to
    accommodate, he concluded that complainant failed to prove that the
    agency's actions regarding the processing of his EEO complaints were
    motivated by discriminatory animus toward his disabilities.

    Regarding complainant's claim of sex discrimination, the AJ found
    that complainant established a prima facie case of sex discrimination
    only with regard to the agency's failure to provide him accommodations
    similar to those provided to a female co-worker.  However, the AJ found
    that the agency articulated a legitimate, nondiscriminatory reason
    which complainant failed to prove was pretextual.  Specifically, the
    AJ found that, to the extent any favorable treatment was provided to
    the female co-worker, she received such favorable treatment over both
    male and female employees alike.  In view of the evidence as a whole,
    the AJ concluded that complainant failed to demonstrate that agency's
    actions regarding the signing in by telephone, denial of trips, and
    receiving of less favorable assignments were related to his sex.

    Finally, the AJ found that complainant established a prima facie case
    of reprisal discrimination with regard to all claims.  Although the AJ
    questioned whether the agency had actually articulated a legitimate,
    nondiscriminatory reason for its actions, particularly with regard to
    Issues 1 and 2, he accepted the agency's submission that the responsible
    agency official was only carrying forth his duties and that complainant
    was not adequately performing the duties of his position.  The AJ then
    concluded that complainant established pretext by demonstrating that he
    was singled out, treated differently, yelled at, and blamed for things
    that others “could get away with.”  The AJ additionally concluded that the
    EEO Office's improper handling of complainant's complaints was motivated
    by retaliatory animus.  The AJ emphasized that throughout the processing
    of complainant's cases, the agency was recalcitrant and unresponsive
    to complainant's needs.  More specifically, the AJ found that the EEO
    office refused to supply complainant with the EEO Counselor's reports,
    canceled meetings which might have been advantageous to complainant
    and might have promoted settlement, and restrained the EEO Counselor's
    discretion as to whom to interview.

    The AJ recommended that the agency offer complainant the following relief:
    (1) compensatory damages; (2) an unconditional offer of reinstatement
    with appropriate back pay; (3) unconditional reinstatement with at
    least a 20-day period in which complainant may determine whether the
    reinstatement is within his current medical restrictions; (4) reasonable
    accommodations as ordered by the agency's first ad hoc committee on
    reasonable accommodation;<5> (5) cease and desist from all unlawful
    employment practices under the Rehabilitation Act and Title VII; (6)
    expunge any adverse materials relating to the agency's discriminatory
    employment practices from complainant's personnel record and all related
    records; and (7) post a Notice regarding the agency's discriminatory
    practices consistent with Commission regulations.

    Thereafter, the agency issued its initial FAD which: (1) adopted the AJ's
    finding of  discrimination based on a failure to provide complainant
    reasonable accommodation; (2) rejected the AJ's findings of reprisal
    discrimination; (3) adopted the AJ's finding of no sex discrimination;
    and (4) adopted the AJ's finding no disability discrimination regarding
    the process of his EEO complaints.  The agency directed complainant
    to submit evidence in support of his claim for compensatory damages
    and his petition in support of attorney's fees and costs.  Complainant
    submitted various medical and counseling reports along with statements
    from family and friends describing the extent of the emotional harm
    complainant suffered as a result of the discrimination.  Complainant also
    submitted documentation of numerous bills and expenses that he asserted
    related to the agency's discrimination.  In total, complainant requested
    $1,662,136.44 in compensatory damages ($252,136.44 in pecuniary damages
    and $1,410,000.00 in non-pecuniary damages).  In a separate compensatory
    damages FAD, the agency awarded complainant $60,118.15 ($15,118.15 in
    pecuniary damages and $45,000.00 in non-pecuniary damages).  In a third
    FAD, the agency awarded the complainant $90,603.15 of the $141,910.00
    complainant requested for attorney's fees.  The agency based its fee
    reduction on certain disputed charges and the fact that complainant had
    only prevailed on the disability portion of his complaints.

    Complainant appeals all three FADs.  Specifically, complainant contends
    that he does not wish to be reinstated in a “substantially equivalent”
    position but in a Recreational Therapist position.<6> Complainant also
    states that the functions of the Recreation Therapist position have
    changed somewhat and that any reasonable accommodation should take these
    changes into consideration. Complainant also reiterates that he was
    discriminated against on the basis of sex as certain female employees
    were treated more favorably than he in several circumstances.  Finally,
    complainant contends that the agency's awards of compensatory damages and
    attorney's fees were insufficient based on the record.  The agency stands
    by the decision in each of its FADs and requests that each be affirmed.


    Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at
    29 C.F.R. § 1614.405(a)), all post-hearing factual findings by an
    Administrative Judge 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 that discriminatory intent
    did exist is a factual finding.  See Pullman-Standard Co. v. Swint,
    456 U.S. 273, 293 (1982).

    The Commission has reviewed the record consisting of the investigative
    report and exhibits, the RD, the FADs, complainant's contentions on
    appeal and the agency's reply to each of the appeals. We conclude
    that the AJ properly determined that the agency discriminated against
    complainant on the basis of disability when it failed to accommodate
    complainant's known disabilities.  We also conclude that the AJ properly
    determined that the agency discriminated against complainant on the
    basis of reprisal with regard to all of the issues.  We note that the
    AJ's findings of reprisal were supported by substantial evidence, in
    that numerous witnesses testified that complainant was treated much
    more harshly than other individuals in his position.  Also, other
    testimony established that the primary responsible agency official
    treated complainant unfairly after learning that complainant went to the
    EEO office to receive aid in seeking accommodation for his disabilities
    and that the agency improperly handled complainant's EEO complaints.
    We further concur with the AJ that complainant did not, however prove,
    by a preponderance of the evidence, that he was discriminated against
    on the basis of sex regarding any of the issues or on the basis of
    disability regarding the agency's processing of his EEO complaints.
    As a result, the Commission hereby affirms the AJ's findings in totality.

    Regarding complainant's request to be placed in a Recreation Therapist
    position, we advise complainant and the agency that EEOC Regulation 29
    C.F.R. § 1614.501(a)(3) provides that the agency must grant the victim
    of discrimination an unconditional offer of placement in the position
    he would have occupied but for the discrimination, or a substantially
    equivalent position.  A “substantially equivalent” position is one that
    is similar in duties, responsibilities, and location.  Handy v Department
    of Transportation, EEOC Petition No. 04950012 (February 23, 1996).


    Section 102(a) of the 1991 Civil Rights Act authorizes an award
    of compensatory damages for post-Act pecuniary losses, and for
    non-pecuniary losses, such as, but not limited to, emotional pain,
    suffering, inconvenience, mental anguish, loss of enjoyment of life,
    injury to character and reputation, and loss of health.  In this
    regard, the Commission has authority to award such damages in the
    administrative process.  See West v. Gibson, 527 U.S. 212  (1999).
    Compensatory damages do not include back pay, interest on back pay, or
    any other type of equitable relief authorized by Title VII.  To receive
    an award of compensatory damages, a complainant must demonstrate that
    he has been harmed as a result of the agency's discriminatory action,
    i.e., the extent, nature and severity of the harm and the duration or
    expected duration of the harm.  Rivera v. Department of the Navy, EEOC
    Appeal No. 01934157 (July 22, 1994), req. for reconsid. denied, EEOC
    Request No. 05940927 (December 11, 1995); EEOC's Enforcement Guidance:
    Compensatory and Punitive Damages Available Under Section 102 of the Civil
    Rights Act of 1991, EEOC Notice No. 915.002 at 11-12, 14 (July 14, 1992)

    A.  Pecuniary Damages

    Compensatory damages may be awarded for pecuniary losses that are
    directly or proximately caused by the agency's discriminatory conduct.
    See Guidance at 8.  Pecuniary losses are out-of-pocket expenses incurred
    as a result of the agency's unlawful action, including job-hunting
    expenses, moving expenses, medical expenses, psychiatric expenses,
    physical therapy expenses, and other quantifiable out-of-pocket expenses.
    Id.  Past pecuniary losses are losses incurred prior to the resolution
    of a complaint through a finding of discrimination, the issuance of
    a full-relief offer, or a voluntary settlement.  Id. at 8-9.  Future
    pecuniary losses are losses that are likely to occur after resolution
    of a complaint.  Id. at 9.  For claims seeking pecuniary damages, such
    objective evidence should include documentation of out-of-pocket expenses
    for all actual costs and an explanation of the expense, e.g., medical and
    psychological billings, other costs associated with the injury caused by
    the agency's actions, and an explanation for the expenditure.  Id. at 9.

    1.  Past Pecuniary Damages

    In this case, complainant provides medical bills, mileage charges,
    loan documentation, telephone bills and other out pocket expenses as
    evidence of past pecuniary damages. Complainant requests $19,020.10 for
    doctor and pharmacy bills related to treatments received as result of
    the agency's discrimination.<7>  Complainant also requests $1,546.13 for
    mileage associated with trips to his psychiatrist, $4,339.29 for loans
    obtained to prevent foreclosure on his home, and $75,569.39 for other
    out of pocket expenses.  In its FAD, the agency reduced complainant's
    request for medical bills to $15,118.15, based on the fact that some of
    the named physicians had treated complainant for conditions unrelated to
    the harm caused by the discrimination.  Additionally, the FAD completely
    refused to award complainant mileage cost, loan reimbursement, and out
    of pocket expenses.

    In reviewing the evidence, we find that the agency must pay complainant
    $18,495.10 in past pecuniary damages.  This amount includes $18,245.10
    for medical expenses<8> and $250.00 for mileage expenses.<9>  As to
    complainant's loan reimbursement request, we find that this amount
    is unrelated to the agency's discrimination, primarily because the
    record indicates that the foreclosure proceedings began prior to
    complainant's termination from the agency. Regarding complainant's
    request for $75,569.39 for out of pocket expenses, we find complainant
    failed to provide specific information to justify the award.  Most of
    the requested amount appears to involve equitable relief, such as back
    pay and cost associated with pursuing his claim, which are not part of
    a compensatory damages determination.  The rest of his out of pocket
    request appears to be for money spent paying routine household bills
    and not for any expenses related to the agency's discrimination.

    2.  Future Pecuniary Damages

    Complainant requests $48,230.00 in future pecuniary damages.  This amount
    includes $15,590.00 for future psychiatric treatment, $6,240.00 for
    future counseling related to overcoming his learning disabilities, and
    $26,400.00 for pharmacy bills.  While we find that complainant is entitled
    to future pecuniary damages, we find that the record supports an award of
    $15,040.00. This amount includes: 2 years of weekly psychiatric treatment
    at $75.00 per session or $7,800.00; $6240.00 for vocational counseling,
    and $1,000.00 for medication.<10>

    B.  Non-pecuniary Damages

    Non-pecuniary damages constitute the sums necessary to compensate the
    injured party for actual harm, even where the harm is intangible.
    Carter v. Duncan-Higgins, Ltd., 727 F.2d 1225 (D.C. Cir. 1984).
    The award should take into account the severity and duration of the
    harm.  Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652
    (July 17, 1995).  Non-pecuniary and future pecuniary damages against
    the agency here at issue are limited to an amount of $300,000.00.
    The Commission notes that for a proper award of non-pecuniary damages,
    the amount of the award should not be "monstrously excessive" standing
    alone, should not be the product of passion or prejudice, and should be
    consistent with the amount awarded in similar cases.  See Ward-Jenkins
    v. Department of the Interior, EEOC Appeal No. 01961483 (March 4, 1999)
    (citing Cygnar v. City of Chicago, 865 F. 2d 827, 848 (7th Cir. 1989)).

    Applying the above legal standards, we agree with the agency that
    complainant submitted sufficient unrebutted evidence to establish that
    he suffered emotional harm as a result of the agency's discrimination.
    The record contains several medical opinions and witness statements
    describing the effect the discrimination had on complainant's mental
    and physical health.

    Complainant's psychiatrist stated that he had began treating complainant
    after his termination by the agency in 1992 and has continued treatments
    up to the date of complainant's appeal.  He opined that as a direct result
    of the agency's discrimination, complainant suffered severe depression,
    anxiety, irritable bowel syndrome, interference with marital and social
    life, and numerous other post-traumatic stress disorder symptoms.
    He further opined that the discrimination exacerbated complainant's
    pre-existing learning disabilities.  He stated that he prescribed numerous
    tranquilizers and antidepressants in an effort to treat complainant.
    He believed that complainant needed indefinite future treatment to
    correct the effects of the physical and emotional damage caused by the

    In addition, complainant's psychologist and vocational counselor, who
    had worked with complainant prior to his employment with the agency,
    stated that the agency's discrimination caused severe setbacks to
    complainant's ability to overcome his learning disabilities.  He further
    stated that subsequent to the discrimination, he has worked over three
    years with complainant to overcome the effects of the discrimination.
    He believed further work was necessary to enable complainant to return
    to his pre-discrimination state.

    Last, complainant's personal physician stated that he began treating
    complainant in July 1995 and diagnosed him as suffering from stress
    and depression.  He stated that complainant further presented evidence
    of chest pain, myalgia, debilitating diarrhea, headaches and other
    somatic complaints that directly resulted from occupational stress.
    Complainant presented evidence from other physicians, but we find that
    the evidence relating to his carpal tunnel syndrome and deviated septum
    are unrelated to the agency's discriminatory actions.

    Complainant also presented statements from his wife and a friend in
    support of his claim. Complainant's wife stated that as a result of the
    agency's discrimination, her husband became lethargic and very irritable
    and suffered from anxiety, emotional distress, depression, shame, loss
    of self-confidence and irritable bowel syndrome.  She stated that they
    have neither slept in the same bed nor had marital relations since 1992.
    She further provided that complainant does not socialize or participate
    in any hobbies.  A friend of complainant provided a statement expressing
    that after complainant's experience with the agency, he appeared depressed
    with a changed outlook on life.  She stated that he stopped rowing with
    her and others friends, and after a period of time completely stopped
    socializing all together.

    We find that the uncontroverted evidence in the form of medical opinions
    and statements from his wife and a friend establishes complainant's
    entitlement to compensatory damages.  While there is no dispute
    that complainant is entitled to non-pecuniary damages, the parties
    differ on the appropriate amount necessary to remedy the harm caused
    by the discrimination.  Complainant contends that he should receive
    $1,410,000.00.  The agency offers that $45,000.00 properly compensates
    complainant for any harm caused by the discrimination.  We note that the
    Commission has awarded compensatory damages in cases somewhat similar to
    complainant's case in terms of the harm sustained.  See, e.g., McCann
    v. Department of the Air Force, Appeal No. 01971851 (October 23, 1998)
    ($75,000.00 in non-pecuniary damages for a discriminatory discharge
    where complainant presented evidence of feelings of psychological
    numbness, anger, insomnia, depression, flashbacks, nightmares, fear,
    fatigue, diminished pleasure in activities, some social withdrawal, less
    confidence on the job and a constant fear of unjustified job loss);
    Santiago v. Department of the Army, Appeal No. 01955684 (Oct. 14,
    1998) ($125,000.00 in non-pecuniary damages where complainant suffered
    depression and other emotional and mental disorders, and severe chest
    and stomach pains, digestive problems, and incidents of shortness
    of breath due to three years of verbal abuse and sex and age-based
    discrimination by her supervisor); Brinkley v. United States Postal
    Service, EEOC Appeal No. 01953977 (January 23, 1998)  ($110,000.00 in
    non-pecuniary damages for the injury sustained by complainant resulted in
    her hospitalization, and the various symptoms she experienced included
    hopelessness, loss of energy, agoraphobia, loss of interest in living,
    depressed mood, impaired memory and concentration, insomnia, agitation,
    and loss of interest in routine activities and personal self care); Finlay
    v. United States Postal Service, EEOC Appeal No. 01942985 (April 29, 1997)
    ($100,000.00 in non-pecuniary damages for severe psychological injury
    over four years which was expected to continue for an indeterminate
    period of time, including ongoing depression, frequent crying, concern
    for physical safety, loss of charm, lethargy, social withdrawal, concern
    for physical safety, recurring nightmares and memories of harassment,
    a damaged marriage, stomach distress, and headaches).

    After analyzing the evidence which establishes the physical and emotional
    harm sustained by complainant and upon consideration of damage awards
    reached in comparable cases, the Commission finds that complainant
    is entitled to an award of non-pecuniary damages in the amount of
    $125,000.00.  We find this case analogous to the above-referenced
    cases with respect to the nature, severity and duration of the harm.
    In reviewing the evidence, we find that complainant has suffered
    physical and emotional harm in the form of severe depression, anxiety,
    irritable bowel syndrome, interference with marital and social life,
    social withdrawal, loss of self-confidence, shame, and damage to his
    pre-existing learning disabilities.  We also find that complainant's
    physical and emotional harm began in 1992 and has continued through
    the filing of his appeals in 1997.  His psychiatrist believes that his
    condition will continue into the indefinite future.  Last, we note that
    this award is not motivated by passion or prejudice, is not "monstrously
    excessive" standing alone, and is consistent with the amounts awarded
    in similar cases. See Cygnar, 865 F.2d at 848.


    By regulation, a federal agency must award attorney's fees, in accordance
    with existing law, for the successful processing of an EEO complaint. See
    64 Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
    referred to as 29 C.F.R. § 1614.501(e)).  The fee award is ordinarily
    determined by multiplying a reasonable number of hours expended on the
    case by a reasonable hourly rate, also known as a “lodestar.”  See 29
    C.F.R. § 1614.501(e)(2)(ii)(B); Bernard v. Department of Veterans Affairs,
    EEOC Request No. 01966861 (July 17, 1998).  In determining the number
    of hours expended, the Commission recognizes that the attorney “is not
    required to record in great detail the manner in which each minute of his
    time was expended.”  See Bernard, supra.  However, the attorney does have
    the burden of identifying the subject matters in which he spent his time
    by submitting sufficiently detailed and contemporaneous time records to
    ensure that the time spent was accurately recorded.  See Bernard, supra.

    Further, a reasonable fee award may be assessed in light of factors such
    as:  (1) the time required (versus time expended) to complete the legal
    work; (2) novelty or difficulty of the issues; (3) the requisite skill
    to properly handle the case; (4) the degree to which counsel is precluded
    from taking other cases; (5) the relief sought and results obtained; and,
    (6) the nature and length of the attorney-client relationship.  See Cerny
    v. Department of the Army, EEOC Request No. 05930899 (October 19, 1994).

    A complainant is only entitled to an award for time reasonably expended.
    It does not always follow that the amount of time actually expended is
    the amount of time reasonably expended.  Elvin v. Department of Labor,
    EEOC Request No. 01943425 (August 31, 1995).   Rather, “billing judgement”
    is an important component in fee setting, and hours that would not be
    properly billed to a private client are also not properly billed to
    the agency pursuant to a successful EEO claim.  Id.  Counsel for the
    prevailing party should make a “good faith effort to exclude from a fee
    request hours that are excessive, redundant or otherwise unnecessary.”
    See Bernard, supra.

    Here, there is no dispute as to the attorney's hourly rate of
    $200.00. However, the agency denied the following fee requests:

    1. .60 hours for telephone conversations with complainant's wife on June
    22, 1992

    The agency denied .40 and .20 hours for telephone calls made by the
    attorney to complainant's wife on June 22, 1992 because they appeared
    to duplicate telephone calls the attorney had already made to her on
    the same day.  The attorney argues that the calls were not duplicates
    as they were for different amounts of time and different descriptions
    of work performed.

    Initially, we note that there is no evidence to substantiate the
    agency's contention that the calls on June 22, 1992 were duplicative.
    The attorney did not specifically document the nature of each telephone
    call to complainant's wife.  However, we find, based on the relatively
    minor amount of time spent on the calls and the record as a whole,
    that granting reimbursement for these telephone calls is reasonable.
    Accordingly, the agency's decision to deny .60 hours for telephone
    conversations on June 22, 1992 is reversed.

    2. .90 hours for telephone conversations with complainant on July 1,

    The agency concluded that these conversations concerned non-EEO matters:
    (1) funds that complainant was receiving to cover lost income as a result
    of the agency's actions; and (2) a letter concerning the agency matter
    and the resulting threatened mortgage foreclosure. The attorney  argues
    that the conversations were related to complainant's EEO case because they
    concerned matters which were a result of the agency's discrimination.

    We find that the agency properly denied these requests because as we
    found earlier, complainant did not link the financial matters and home
    foreclosure to the agency's discrimination.  Accordingly, we affirm the
    agency's findings in this regard.

    3.  15.60 hours for services on June 8, 11, 12, 16, 18, 1992

    These charges were denied on the grounds that the services were rendered
    prior to the filing of a formal complaint regarding complainant's
    termination.  The attorney notes that complainant filed the first of his
    instant complaints in March 1992 and that the meeting and discussions
    were not limited to the June 8, 1992 termination complaint.  The attorney
    states that the crux of the meetings involved discussions on how best
    to proceed with complainant's entire discrimination case.

    We find that the agency improperly denied this request.  It is not
    reasonable to assume from the evidence submitted that the meetings,
    discussions, and research in question related solely to complainant's
    termination.  Rather, we accept the attorney's argument that the work
    related to the previously filed complaints, the case as a whole, and
    the best way to proceed with the all of his complaints.

    4.  10 hours for services claimed on October 23, 1992 involving review
    of a letter from the Administrative Judge

    The agency determined that these services did not appear to involve the
    EEO complaint on which complainant prevailed.  The attorney does not
    dispute the agency's deduction of the charge for October 23, 1992 but
    explains that the agency mistakenly misread this charge to be 10 hours
    when a claim for.10 hour was actually submitted. The attorney requests
    that 9.9 hours mistakenly deducted from the overall award be restored.
    We find that the agency must restore the 9.9 hours deducted from the
    total award due to the its misreading.

    5.  11.10 hours of 12.80 hours requested for specific services from
    October 26, 1992 through May 5, 1993

    Specifically, the attorney requests reimbursement for hours of service
    performed on October 26, 1992, November 5, 1992, and December 16 and
    29, 1992 in preparation for filing a formal EEO complaint.  The agency
    denied 11.10 hours because: (1) the October 26, 1992 services concerned
    the remand of complaints on which complainant did not prevail; (2) the
    November 5, 1992 entry referred to the complaint relating to the agency's
    processing of his EEO complaints on which complainant did not prevail;
    and (3) the December 16 and 29, 1992 entries referred to the preparation
    for the filing of the formal EEO complaint relating to the agency's
    mishandling of his EEO complaints.  The attorney argues that all 12.80
    hours requested related to claims upon which complainant prevailed.

    Based on the information contained in the record, it is reasonable to
    conclude that this work was related to the EEO processing complaint
    filed on December 29, 1992, on which complainant did prevail before the
    AJ and in this appeal. The record indicates that the October 16, 1992
    work involved discussing and reviewing complainant's “EEO decisions.”
    The November 5, 1992 entry indicates that the telephone conversations
    concerned the EEO processing complaint.  The record also confirms that
    work was done on the EEO process complaint on December 16 and 29, 1992 as
    the agency noted.  Because we find that the hours requested were spent
    primarily working on the EEO process complaint on which complainant
    prevailed, we reverse the agency's denial of 11.10 hours.

    6. 25% (9 hours) of the 36 hours expended during the investigative stage

    The agency stated that it made this reduction because complainant did not
    prevail on all of the issues in the complaints, though he did prevail on
    the major issues.  While conceding that four of these hours were unrelated
    complainant's EEO case, the attorney contends that the agency should not
    have made the 25% deduction nor taken away any of the remaining hours.
    In view of the AJ's decision which was affirmed by this appeal, we find
    that complainant prevailed on each of the three merit issues in his
    case.<11>    In light of the success achieved by complainant's attorney
    and the fact that we do find the requested fees reasonable, we reverse
    the agency's across-the-board reduction.  See Bernard v. Department of
    Veterans Affairs, EEOC Request No. 01966861 (July 17, 1998).

    7.  25% (61 hours) plus an additional 83 hours of the 244 hours spent
    during the discovery stage

    The agency surmised that discovery was conducted from approximately June
    30, 1994 through May 10, 1995.  In addition to its 25% across-the-board
    reduction, the agency concluded, without providing any explanation,
    that 100 hours rather than the 183 hours requested is a more reasonable
    figure to award complainant for time spent on discovery.  The attorney
    argues that the additional denial of 83 hours is inappropriate because :
    (1) the agency did not comply with discovery requests which required
    extensive extra work; (2) discovery involved six complaints and so any
    reasonable amount of time spent on one case would have to be multiplied
    by six; and (3) complainant has a learning disability which made it
    very time consuming for the attorney to work with him on the case. The
    attorney also contends that the agency incorrectly listed services
    provided during the hearing preparation stage as being provided during
    the discovery stage.  

    For reasons stated earlier, we reverse the agency's 25% across-the-board
    reduction.  We also reverse the agency's further reduction of the 83
    hours.  Based on our review of these specific requests and of the entire
    record related to the discovery process, we find that the attorney's
    requested number of hours were reasonable given the various discovery
    related disputes with the agency and the extra time necessary to deal
    with complainant's learning disability.  Accordingly, we reverse the
    agency's deduction and award complainant the full 244 hours associated
    with the discovery process.

    8.  25% (25 hours) of the 99 hours related to the hearing and hearing
    preparation stage

    Again, we find that the 25% reduction is unreasonable and award
    complainant the full 99 hours associated with hearing preparations.  

    9.  56 of the 66 hours spent during the post-hearing stage

    The agency denied the 56 hours on the grounds that they were either
    unnecessary or duplicative.  By example, the agency notes that several
    telephone conversations in one day were made with complainant regarding
    the status of his case; in other instances the attorney spoke with
    complainant on several consecutive days about the status.  According to
    the agency, the only services that were reasonable were those spent
    reviewing the administrative judge's decision, reviewing the agency's
    final decision, determining the possibility of appeal, considering
    the possibility of settlement, and preparing attorney's fee petition.
    The attorney argues that complainant's disability caused much more
    work than might ordinarily be required during the post-hearing phase.
    According to the attorney, repeated descriptions and discussions of the
    proceedings were required due to complainant's learning disability. The
    attorney also states that additional work was required because of the
    difficulty in confirming and documenting the status of the case with
    both the agency and EEOC.

    We agree with the agency that 66 hours is inappropriate primarily because
    many of telephone calls and conference made to and with complainant
    and his wife are insufficiently substantiated and appear excessive.
    However, after reviewing the entries and considering complainant's
    learning disabilities, we find that granting the attorney 33 of the 66
    requested hours is reasonable.

    Based on the foregoing, we reverse the agency's FAD regarding attorney's
    fees and order the agency to compensate complainant for the 244.30 hours
    improperly deducted from complainant's attorney's fee award.


    Therefore, the agency's final decision is AFFIRMED in part and REVERSED
    in part.  Complainant's complaint is REMANDED for further processing in
    accordance with the ORDER below.

    ORDER (D1199)

    To the extent it has not already done so, the agency is ORDERED to take
    the following remedial action:

    1.  Within thirty (30) days of the date this decision becomes final,
    the agency shall offer complainant placement in a Recreation Therapist
    position, or if this position is not available, in a substantially
    equivalent position.  Complainant shall be placed under different
    supervisors than the supervisors named as responsible officials in
    complainant's cases.  Complainant shall be offered this Recreation
    Therapist position with at least a 20-day period in which to determine
    whether to accept the position, and if necessary, this time period
    should be extended for a reasonable period of time based on complainant's
    doctor's assessment.  Complainant shall also be awarded back pay, with
    appropriate interest, retroactive to the date on which his employment
    with the agency was terminated.

    2.  If complainant accepts reinstatement, he shall be provided with all
    accommodations necessary for him to perform the essential functions of
    the Recreational Therapist position or any other substantially equivalent
    position offered.  The agency shall refer to EEOC Enforcement Guidance:
    Reasonable Accommodation and Undue Hardship Under the Americans with
    Disabilities Act, EEOC No. 915.002 (March 1, 1999) for direction as to
    how appropriately administer the interactive accommodation process.

    3.  Within thirty (30) days of the date this decision becomes final, the
    agency shall expunge from complainant's personnel files any documents
    relating to adverse actions complainant suffered due to the agency's
    discriminatory practices.

    4.  Within thirty (30) days of the date on which this decision becomes
    final, the agency shall tender to complainant $18,495.10 in pecuniary
    damages, $15,040.00 in future pecuniary damages; and $125,000.00 in
    non-pecuniary damages; a total of $158,535.10.

    5.  Within thirty (30) days of the date on which this decision becomes
    final, the agency shall tender to complainant $48,860.00 (244.3 hours
    at $200.00 per hour) in attorney's fees.  The agency is also ordered
    to pay complainant reasonable attorney's fees and costs incurred
    in the successful pursuit of the three current appeals (EEOC Appeal
    Nos. 01970546, 01972227 and 01975957). The attorney shall provide the
    agency with all necessary documentation of services rendered and costs
    as incurred in pursuit of these appeals within thirty (30) calendar
    days of the date this decision becomes final. The agency shall tender
    this payment separately from the payment specified in the first part of
    this order and shall tender it to complainant no later than sixty (60)
    calendar days after the date this decision becomes final.<12>  See 29
    C.F.R. § 1614.501.

    6.  Within thirty (30) days of the date this decision becomes final, the
    agency shall post at an appropriate place, a copy of the attached notice.

    7.  Within a reasonable period of time, the agency is directed to conduct
    EEO training (with emphasis on disability and reprisal discrimination) for
    the management staff at its Medical Center in Coatesville, Pennsylvania.
    The agency shall address management's responsibilities with respect to
    eliminating discrimination in the workplace and all other supervisory
    and managerial responsibilities under the federal equal employment
    opportunity laws enforced by the Commission.

    8.  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.


    The agency is ORDERED to post at its Coatesville, Pennsylvania facility
    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.


    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 64
    Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
    referred to as 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)(Supp. V 1993).  If the complainant files a civil action, the
    administrative processing of the complaint, including any petition for
    enforcement, will be terminated.  See 64 Fed. Reg. 37,644, 37,659 (1999)
    (to be codified and hereinafter referred to as 29 C.F.R. § 1614.409).



    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
    DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS OF
    Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
    to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
    referred to as 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).

                            COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION

    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
    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.


    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").



    Carlton M. Hadden, Director

    Office of Federal Operations

    August 9, 2000

    1 The Rehabilitation Act was amended in 1992 to apply the standards in
    the Americans with Disabilities Act (ADA) to complaints of discrimination
    by federal employees or applicants for employment.  Since that time,
    the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
    of disability discrimination.  These regulations can be found on EEOC's
    website: www.eeoc.gov.

    2  On November 9, 1999, revised regulations governing the EEOC's federal
    sector complaint process went into effect.  These regulations apply to all
    federal sector EEO complaints pending at any stage in the administrative
    process.  Consequently, the Commission will apply the revised regulations
    found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
    present appeal.  The regulations, as amended, may also be found at the
    Commission's website at www.eeoc.gov.

    3 It is unclear from the record whether or not complainant raised a claim
    of race discrimination.  However, on appeal, complainant does not appear
    to contest any findings with regard to race discrimination.

    4 In addition to the prior committee members, the subsequent Committee
    included the Chief, the EEO Manager, and the facility physician.

    5 The record shows that the first ad hoc committee met on December 10,
    1991 and approved reasonable accommodations for complainant as delineated
    on page 6 and 7 of the agency's final decision.

    6  In its FAD finding disability discrimination, the agency stated that
    it would place complainant in a Recreation Therapist or a “substantially
    equivalent” position if the former position is not available.

    7 In his initial compensatory damages request to the agency, complainant
    requested $20,681.63 for past medical expenses.  On appeal, complainant
    amended his request to $19,020.10, to eliminate medical expenses unrelated
    to the agency's discrimination.

    8 We find that $775.00 for expenses related to treatment from Physician
    S from January 1997 to April 1997, must be deducted because the record
    does not contain a report from Physician S explaining how the treatments
    related to the harm caused by the discrimination.  See Complainant's
    Compensatory Damage Exhibit F.

    9 While complainant requested $1,546.13 for mileage expense, we find
    that $250.00 appears a more reasonable calculation.  In Santiago
    v. Army, Appeal No. 01955684 (Oct. 14, 1998), the Commission held
    that in determining mileage in a past pecuniary award, a complainant
    shall be reimbursed $0.25 for each mile associated with receiving
    treatment for a harm caused the agency's discrimination.  In this case,
    complainant, instead of providing the total mileage used, requests a
    $1,546.13 for mileage, which equates to 6,184 miles using the $0.25 per
    mile calculation.  While we find 6,184 miles excessive and unsupported,
    we acknowledge that complainant provides evidence of many visits to his
    psychiatrist, physician, psychologist and vocational counselor.  As a
    result, we find that complainant is entitled to $250.00 or 1,000 miles.

    10  We find complainant's request for $26,400.00 for future medication
    unsupported by the record.  While his psychiatrist stated that complainant
    would need medication to maintain his mental health, we find that after
    reviewing the pharmacy bills associated with his psychiatric treatments,
    $1,000.00 is a reasonable amount for two years of medication.

    11 While complainant did not prevail on each basis of discrimination, the
    AJ found discrimination or reprisal with respect to each of complainant's

    12 The record indicates that complainant was represented by a different
    attorney in pursuing his appeals.

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