recommending official, formally recommended Barbara Twombly for the position of Division Director, or as of August 9, 1992, the beginning of the first pay period after Laurence Love, the selecting official, approved the recommendation of Ms. Twombly by Mr. Stovenour. Based on the representations of the government and the declaration of Sylvia Vela, dated March 12, 1996, the Court concludes that plaintiff is entitled to retroactive promotion to the GS-15 Level, Step 6, as of August 9, 1992, not as of June 10, 1992.
The parties also are in agreement that, in view of the jury's verdict, plaintiff is entitled to back pay and other benefits, with interest, for the pay differential between what he earned as a GS-14, Step 10, and a GS-15, Step 6, and that he should receive the appropriate bonuses and step increases, if any, attendant with the promotion to Division Director. The only point of disagreement is whether plaintiff's benefits should be calculated based on the assumption that he would have performed at the "outstanding" level as Division Director or only at a "fully successful" level, his most recent performance rating. Because plaintiff has never been a Division Director, there is no direct evidence about how plaintiff would have performed in that position. There is evidence, however, that his most recent performance evaluation was only a "fully successful" rating, and plaintiff testified at trial that he did not contest this rating. Based on the trial testimony, the Court concludes that it would be more appropriate to calculate plaintiff's back pay and other benefits as if plaintiff had received a "fully successful" rating rather than an "outstanding" rating. Thus, the back pay and benefits shall be calculated as if he had received a "fully successful" rating from August 10, 1992 until the present time.
B. Recrediting Annual Leave and Sick Leave
Plaintiff argues that Mr. Hayes was forced to use both sick leave and annual leave "to get treatment and to maintain his equilibrium" because of the "retaliatory campaign" waged against him by Barbara Twombly. He maintains that he was forced to use 405.5 hours of sick leave and 447.8 hours of annual leave between March of 1993, when the "retaliatory campaign against him seems to have started," and the trial of this case that began on November 29, 1995. He also argues that because of this retaliatory treatment he was "forced to conserve what little leave he had left" and thus took 40 hours of leave without pay in order to take his sons on vacation. He therefore seeks payment for this week of leave without pay, in addition to the re-crediting of annual and sick leave. All of these requests are premised on the jury having found by a preponderance of the evidence that Barbara Twombly intentionally retaliated against plaintiff because of his EEO complaint regarding his non-selection for the Division Director position.
The jury found that Ms. Twombly's retaliatory actions caused Mr. Hayes to suffer "emotional pain, suffering, inconvenience, mental anguish, or loss of enjoyment of life so as to entitle him to monetary compensation over and above back pay" and awarded him $ 50,000 in compensation. The jury also compensated plaintiff for the humiliation, emotional pain and suffering, inconvenience and mental anguish that he suffered by virtue of the discrimination and retaliation that led to his non-selection for the position of Division Director. This jury award of $ 150,000 more than compensates and makes plaintiff whole for these emotional injuries. The fact that he allegedly had to take leave to visit his psychotherapist and to otherwise absent himself from the workplace because of the work environment which he found intolerable necessarily was considered by the jury as evidence in support of his claim for compensatory damages and therefore is encompassed by the jury's verdict. See Shaw v. Nebraska Department of Correctional Services, 666 F. Supp. 1330, 1339 (D. Neb. 1987).
It is clear from the legislative history of the Civil Rights Act of 1991, which provided for compensatory damages under Title VII for the first time, that the sort of recovery for emotional distress sought by plaintiff is not available as a form of equitable relief, since before 1991 it was not available under Title VII at all. In explaining why Congress added compensatory damages, the House Report reasoned that
victims of intentional . . . discrimination . . . often endure terrible humiliation, pain and suffering. This distress often manifests itself in emotional disorders and medical problems. [Yet without compensatory damages] victims of discrimination often suffer substantial out-of-pocket expenses as a result of the discrimination, none of which is compensable with equitable remedies. The limitation of relief under Title VII to equitable remedies often means that victims of intentional discrimination may not recover for the very real effects of the discrimination.
H.R. REP. No. 102-40, 102d Cong., 1st Sess. 2 pt. 2, at 25 (1991).
Moreover, equitable relief is not automatic and the Court must assess the appropriateness of the equitable relief sought in light of the injuries found.
Where the jury has not actually decided an issue or where the basis for the jury's decision cannot be determined, the court is not bound. Blake v. Hall, 668 F.2d 52, 54 (1st Cir. 1981), cert. denied, 456 U.S. 983, 72 L. Ed. 2d 862, 102 S. Ct. 2257 (1982). Here, the jury expressly found that Ms. Twombly refused to allow plaintiff to accrue and use credit hours to work out at the gym during an extended lunch hour every day and in so doing unlawfully retaliated against him. The government has conceded that plaintiff is entitled to 44.5 hours of annual leave for this time.
The jury also expressly found that Ms. Twombly retaliated against plaintiff by charging him with one hour of Absent Without Leave (AWOL); plaintiff therefore is entitled to recover this hour.
The jury's other findings, however, do not demonstrate that plaintiff is entitled to be credited with the large amount of leave he took allegedly to improve his mental health. The jury found that Ms. Twombly retaliated against plaintiff by rating him only at the "fully successful" level, by requiring him to submit a work plan before she would approve his annual leave, by denying his request for annual leave, by investigating a complaint against him, by reprimanding him and by verbally abusing him. These actions have, at best, a highly attenuated connection to plaintiff's decision to take over 850 hours of sick leave and annual leave. Plaintiff's unilateral decision to absent himself from the workplace does not entitle him to the equitable relief he seeks either in the Court's view or, so far as can be discerned, in the jury's. For these same reasons, the 40 hours of leave that plaintiff took without pay is also not compensable because plaintiff has failed to demonstrate, and the jury did not find, that his leave taking resulted from defendant's unlawful conduct.
C. Injunction Prohibiting Discrimination and Retaliation and Correction of Records
An injunction prohibiting discrimination and retaliation in this case is both unnecessary and inappropriate. The jury verdict is sufficient in and of itself to protect plaintiff against future acts of discrimination and retaliation. The Court will not presume that the Secretary of Health and Human Services and her employees will not follow the law and plaintiff has not demonstrated that future violations are likely. See E.E.O.C. v. General Lines, Inc., 865 F.2d 1555, 1565 (10th Cir. 1989). No injunction will be issued.
Regarding the request for correction of records, the Court will order that Mr. Hayes' personnel folder and other relevant Department records be corrected to reflect the jury's verdict and the equitable relief provided by the Court.
D. Attorneys' Fees and Costs
As the prevailing party in this Title VII case, plaintiff is entitled to reasonable attorneys' fees and costs. 42 U.S.C. § 2000e-5(k); see Moore v. National Association of Securities Dealers, Inc., 246 U.S. App. D.C. 114, 762 F.2d 1093, 1097-98 (D.C. Cir. 1985). The Court has reviewed defendant's request, including counsel's sworn declaration and the detailed billing records provided, as well as the government's arguments, to determine whether the hours spent and the hourly rates are reasonable. Copeland v. Marshall, 205 U.S. App. D.C. 390, 641 F.2d 880, 889 (D.C. Cir. 1980); see Evans v. Sheraton Park Hotel, 164 U.S. App. D.C. 86, 503 F.2d 177 (D.C. Cir. 1974).
For the reasons stated by plaintiff's counsel, the Court will not disallow those few hours relating to Civil Action No. 95-1334, a case previously dismissed by the Court. As for the cases that went to trial, the Court finds that the time spent by plaintiff's counsel throughout the pretrial period, including the time spent in depositions and other discovery, was entirely reasonable. The Court also finds that the time spent in preparation for trial and during trial (sometimes as much as 18 to 20 hours a day), while quite substantial, was not unreasonable in view of the number of witnesses and the need to prepare each evening during trial for the next day's events. While counsels' hourly rates appear reasonable by comparison to the prevailing market rates of other attorneys of comparable experience, skill and reputation, Blum v. Stenson, 465 U.S. 886, 895-96 n.11, 79 L. Ed. 2d 891, 104 S. Ct. 1541 (1984), the Court does not find it appropriate to charge all the time at counsels' current rates (rather than at counsels' historic rates which changed over the relevant period) merely because of the passage of time between the time services were provided and the date of payment; that is not the typical practice in the law firm world.
Thus, counsel is entitled to $ 183,805.00 for the time spent by David H. Shapiro, $ 7,015.00 for the time spent by Richard L. Swick, and $ 15,427.50 for the time spent by Diane Bodner, for a total of $ 206,247.50. The costs and expenses incurred by counsel, in the amount of $ 4,219.06, are also reasonable.
Counsel therefore is entitled to a total of $ 210,466.56 in fees and costs.
An Order consistent with this Opinion is entered this same day.
PAUL L. FRIEDMAN
United States District Judge
This case is before the Court on plaintiff's Application for An Award of Equitable Relief Including Costs and Attorneys' Fees. For the reasons stated in the Opinion entered this same day, it is hereby
ORDERED that plaintiff's motion for equitable relief and attorneys' fees is GRANTED in part and DENIED in part; and it is
FURTHER ORDERED as follows:
1. Plaintiff shall be appointed to the position of Director of the Division of Acquisition Management retroactive to August 9, 1992;
2. Plaintiff shall be promoted to the GS-15/Step 6 pay level retroactive to August 9, 1992;