William L. Bernard, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency. Appeal No. 01966861 Agency No. 93-2879 On September 20, 1996, William L. Bernard (hereinafter referred to as appellant) initiated an appeal to the Equal Employment Opportunity Commission (Commission) from the final decision of the Department of Veterans Affairs on compensatory damages and attorney's fees concerning his complaint of discrimination in violation of Section 501 of the Rehabilitation Act of 1973, as amended, 42 U.S.C. §791etseq.. The final agency decision was issued on August 19, 1996. The agency failed to submit a postal return receipt or other evidence that would show when appellant received the final agency decision. The appeal is accepted by this Commission in accordance with the provisions of EEOC Order No. 960, as amended. For the reasons set forth below, the agency's decision is MODIFIED. ISSUE PRESENTED The issues on appeal are (1) whether the agency's final decision properly determined that appellant was not entitled to an award of compensatory damages for the Commission's previous finding of disability discrimination; and (2) whether the agency properly awarded appellant $39,250.00 in attorney's fees and no costs. BACKGROUND On July 21, 1993, appellant filed an EEO complaint alleging that the agency discriminated against him on the basis of his physical disability (Blind) by failing to provide him with reasonable accommodation and in not selecting him for lateral reassignment to the position of a Veterans Benefit Specialist.1 After an investigation, appellant requested an administrative hearing by an EEOC Administrative Judge (AJ). After three days of hearings, the AJ issued a recommended decision (RD) finding that the agency On appeal, in Bernard v. Dept. of Veterans Affairs, EEOC Appeal No. 01952691 (March 28, 1996), the Commission held that the agency had violated the Rehabilitation Act. Specifically, the Commission found that the agency failed to provide appellant with reasonable accommodation necessary for him to independently perform the duties of his VBC position and that the agency intentionally discriminated against appellant based on his disability by failing to select him for reassignment to one of 10 VCE positions in its Adjudication division. As relief, the Commission awarded appellant, interalia, placement in a VCE position as soon as practicable, with reasonable accommodation in that position, overtime he would have worked in the position, and reasonable attorney's fees in accordance with 29 C.F.R. §1614.501(e). The decision further ordered the agency to 'eliminate the discriminatory practice,' taking all necessary steps to do so, and to conduct a supplemental investigation to determine whether appellant was entitled to compensatory damages. The agency failed to file a request for reconsideration of this decision. By letter dated April 30, 1996, the agency requested that appellant submit both an attorney's fee petition and objective and verifiable evidence to establish that compensatory damages were incurred and that the damages resulted from the discrimination alleged, within 30-days of counsel's receipt of the decision. Compensatory Damages Request Appellant submitted an 'Application [of appellant) for an award of compensatory damages, immediate provision of reasonable accommodation, overtime pay and promotion.' (compensatory damages application).2 In it, he requested $500,0003 in compensatory damages for the past, present and continuing emotional distress he suffered due to the agency's 'steadfast determination to refuse to provide him with reasonable accommodation and to discriminate against him because he is blind.' Appellant's declaration and the corroborative affidavits described the effects on him over the course of his4 Commission records indicate that appellant's application for disability retirement from agency employment was approved in April 1997. Attorney's Fee Petitions Appellant was initially represented by the Disability Rights Education and Defense Fund, Inc. (DREDF), which employed Attorney Nos. 1-3 and used the services of two law student interns. Shortly after the administrative hearing, Attorney No. 1 left the employ of DREDF and began representing appellant as a solo practitioner. Appellant's counsel subsequently submitted an initial and supplemental fee petition which requested the following fees for legal services provided during the prosecution of this complaint.5 The initial fee petition claimed $99,979.50 in fees and $4,285.00 in costs for the work of DREW attorneys and law students representing the following: Attorney No. 1(306.8 hours x $285); Attorney No. 2 (16. 1 hours x $285); Attorney No. 3 (6.1 hours x $210); Law Students (111.2 hours x $60). Attorney No. 1 claimed $41,453.15 in fees and $152.31 in costs for her work in a solo capacity (145.45 hours x $285). She further claimed $1,781.25 for the work of Attorney No. 4, a consultant on federal sector complaint processing (6.25 hours x $285). The supplemental fee petition claimed $681.00 in fees and $30.75 in costs for DREW work by Attorney Nos. 2 (.4 hours x $285) and 3 (2.7 hours x $210). Attorney No. 1 claimed fees in the amount of $18,667.50 (65.5 x $285).6 On appeal, Attorney No. 1 further supplemented her fees and costs claim by seeking additional fees in the amount of $17,100.00 for 60 additional hours of work at the rate of $285.00 per hour and $103.73 in additional costs for filing the appeal herein and a petition for enforcement of the Commission's decision. In an August 19, 1996 final agency decision (FAD), this agency ruled that appellant was not entitled to compensatory damages based on its 'substantial, serious, well intentioned and undeniably in good faith' efforts to provide appellant with reasonable accommodation. To support this assessment, the agency asserted that its failure to accommodate appellant over the course of his employment was a case of 'lack of knowledge and conflicting priorities,' not ill intent, involving a repeatedly rescheduled office move and the failure of highly touted adaptive equipment which did not work as well as stated by the experts who recommended it. The agency claimed that the only concrete harm suffered by appellant was the nonselection, which could be remedied with a possible back pay award. The agency further indicated that appellant's submission, which lacked expert physician's statements and which did not prove that the damages resulted from the discrimination rather than from some pre-existing condition, failed to support any award of compensatory damages. With regard to appellant's initial7 and supplemental request for attorney's fees, the agency awarded appellant's attorneys a total of $39,250.00 in legal fees ($28,000.00 for DREDF, representing 112 hours of attorney time at $2508 per hour and $11,250.00 for 45 hours of Attorney No. 1's work at $250 per hour on the post hearing and appeal briefs and for other post hearing matters) and no costs. The agency summarized its fee allocation as: 24 hours for the hearing and 48 hours for hearing preparation; 16 hours for prehearing depositions and 16 hours of deposition preparation; eight hours for a prehearing conference; 30 hours for post hearing and appeal brief preparation and 15 hours for fee requests and other miscellaneous time. In reaching this allocation, the agency declined to engage in a line by line consideration of the fees requested, in that the amounts were clearly excessive. It further disapproved all time for consulting with Attorney No. 4 in that It is from this decision that appellant now appeals. Appellant's counsel submits a brief in which she argues that appellant is entitled to the full $300,000 award permitted for compensatory damages and that the attorney's fee petitions submitted should be awarded in full. In response to appellant's appeal, the agency asserts that appellant should not be afforded compensatory damages for the intentional discrimination found in the nonselection because the affidavits submitted by appellant to support his request focus almost exclusively on the effects of the denial of reasonable accommodation. This argument is not borne out in the affidavits submitted on appeal. Witnesses repeatedly refer to the negative effects of the nonselection on appellant. The agency again argues that it made good faith efforts to accommodate appellant, and characterizes the evidence submitted by appellant in support of the compensatory damages request as statements 'to the effect that he was happy when he starting working, at the agency and is not happy now, plus a statement from his dentist that he grinds his teeth.' The agency asserts that '[a]ppellant] had been unemployed for at least four years when the [agency] hired him. He clearly had unrealistic expectations about Federal Employment, particularly in a position dealing directly with claimants.' The agency further asserts '[t]here is nothing in the evidence submitted to distinguish any unhappiness resulting from accommodation problems from that resulting from [appellant's] lengthy period of unemployment or that resulting from the conflict between his unrealistic expectations and the realities of Federal employment.' With regard to attorney's fees and costs, the agency reiterates the rulings in its FAD and notes that no costs were awarded because of appellant's attorneys' failure to produce the requisite documentation in support of the request. ANALYSIS AND FINDINGS COMPENSATORY DAMAGES ELIGIBILITY Section 102 (a) of the Civil Rights Act of 1991, 105 Stat. 1071, Pub. L. No. 102-166, codified at 42 U.S.C. § 1981a, authorizes an award of compensatory damages as part of make-whole relief for intentional discrimination in violation of the Rehabilitation Act of 1973, as amended. In Jackson v. U.S. Postal Service, EEOC Appeal No. 01923399 (November 12, 1992); request for reconsid. denied, EEOC Request No. 05930306 (February 1, 1993), the Commission held that Congress afforded it the authority to award such damages in the administrative process. In Cobey Turner v. Department of the Interior, EEOC Appeal Nos. 01956390 and 01960518 (April 27, 1998), the Commission recently reaffirmed that holding. Section 1981a(b) (3) limits the total amount of compensatory damages that may be awarded each complaining party for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses, according to the number of individuals employed by the respondent. The limit for a respondent who has more than 500 employees is $300,000. 42 U.S.C. § 1981a(b) (3) (D). Where a discriminatory practice involves the provision of a reasonable accommodation, compensatory damages may not be awarded where the employer demonstrates good faith efforts to make a reasonable accommodation. 42 U.S.C. § 1981a(a) (3). In this case, the agency argues that its provision of a reader to appellant for approximately nine months during his two year initial period of employment as a VBC and its, initial installment of electronic equipment constitute 'good faith efforts' to provide appellant with reasonable accommodation which should preclude a compensatory damages award. Given our review of the record, however, we are not so persuaded.9 From the outset, it is clear that the rulings reached by the AJ and the Commission in this case are unsupportive of such claims. The AJ specifically noted, and we agree, that the accommodation provided to appellant by the agency caused a working condition in which appellant was unable to function autonomously and that such conditions robbed appellant of privileges and benefits of employment equal to those enjoyed by non-disabled individuals. The AJ further found that the agency did not present evidence of undue hardship and specifically held that the reasons provided by the agency for not providing appellant with functioning adaptive equipment, his supervisor's lack of knowledge about the equipment and the time pressures involved with the impending office move from San Francisco to Oakland, did not meet this standard. The AJ noted and the Commission agreed that the agency could have contracted with an outside source to assist appellant if it did not have the time and resources in house, but did not act to do so. The Commission's previous decision also specifically held that the reasons given by the agency as to why appellant's equipment, was allowed to remain nonfunctional, e.g., the impending office move, and the lack of familiarity with adaptive equipment, did not establish undue hardship in the accommodation requested by appellant. We do not find these agency explanations, previously rejected by the AJ and the Commission, to be an indication of good faith agency efforts at reasonable accommodation. The agency asserts on appeal that its failure to provide appellant with the reasonable accommodation necessary to allow him to autonomously function in his position was merely a matter of conflicting priorities and inexperience with adaptive equipment. This is not, as the agency appears to suggest, indicative of good faith in this matter, given that appellant's needs were apparently not made part of the agency's priorities during his initial two year period of VBC employment. As noted by the Commission in EEOC Appeal No. 0195,2691, the record indicated that agency officials failed to take basic steps to get equipment they had obtained without appellant's participation, to become operational. Specifically, the record showed that the agency official responsible for implementing the requisite accommodation: kept the operational manual on his desk, yet never read it; never used the '800' number to obtain operational assistance nor charged any other staff member with doing so; never attempted to exchange or return the equipment to the company; and even admitted avoiding appellant's computer terminal based on a personality conflict with appellant's reader. Nor did the agency suggest using, an outside contractor to set up the equipment and train appellant on its use. The agency also claims its provision of a trainer/reader to appellant for an initial nine month period illustrates its good faith efforts to accommodate him. The Commission has previously noted in this case, however, that all employees were initially provided with a trainer, hat acting in the reader capacity was incidental, and that appellant's trainer/reader was ultimately removed. See Bernard, EEOC Appeal No. 01952691, n.9. NONPECUNIARY DAMAGES FOR EMOTIONAL DISTRESS 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; 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), request for reconsid. denied, EEOC Request No. 05940927 (December 11, 1995); Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. N 915.002 at 11-12, 14 (July 14, 1992). An appellant is required to provide objective evidence that will allow an agency to assess the merits of a complainant's request for emotional distress damages. See Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993). The record contains substantial evidence of the serious emotional effects of both the agency's failure to reasonably accommodate appellant over an extended period of time and its nonselection of him based upon intentional disability discrimination. Appellant submitted objective evidence through his own affidavit and those from numerous friends and coworkers which attested to, in great detail, the physical, emotional and behavioral manifestations of his emotional distress caused by the agency's failure to accommodate him and discriminatory nonselection. He also submitted a statement from his dentist indicating that the long, term, stress of appellant's job situation caused him to have trouble sleeping and to grind and clench his, teeth at night, which resulted in dental pain and necessitated the use of a night guard and sedative medication. Appellant is described by himself and others at the outset of his agency employment as initially optimistic, outgoing, and idealistic. The affidavits delineate, in detail, appellant's metamorphosis over the period of his agency employment to someone who is depressed, cynical, negative, withdrawn, hopeless concerning his ability to function autonomously with his disability, and less trusting of others. Friends and coworkers tell, how the agency's failure to deliver promised accommodations wore away at appellant, making him irritable, angry, humiliated, and fearful of losing his job. Appellant avers that his; initial shock that the agency would not accommodate him gave rise to anger and moodiness, causing him to snap at friends and coworkers. He states, that he ultimately began telling callers asking him about Veterans benefits that he was blind and could not assist them due to the lack of means for him to look up the answers in the manuals. Appellant further details the devastating effect of his nonselection for the transfer into one of ten VCE openings in the agency's Adjudication division. He states that when he found out in the Spring of 1993 that he was the only one of eleven applicants not to be selected for the position, he was extremely upset, and began experiencing physical symptoms such as ringing in his ears, headaches, vomiting, raised blood pressure, grinding of his teeth and insomnia. Appellant's coworkers indicate that appellant appeared very upset and stopped eating on their breaks. One friend of appellant reports that after the nonselection 'appellant's' voice was too flat, with little emotion or personality, [appellant] sounded like there was a real breakdown in his spirit; he sounded beaten down, 'Appendix to appeal, Declaration F1, Paragraphs 11-13. Coworkers report that after the agency's office move from San Francisco to Oakland in early summer 1993 and its simultaneous removal of appellant's trainer/reader; appellant became even more sad and withdrawn, appearing at times to be near tears, his voice cracking when he spoke of the job. Appellant describes feeling ostracized and isolated and losing his appetite. He indicates that he reached a breaking point in the summer of 1993 when an agency Human Resource Officer (HRO) came into his work area and told him, in effect, that there was no basis for him to file a disability discrimination complaint for the denial of reasonable accommodation. Appellant began swearing and screaming at the HRO, which resulted in his receipt of a three-day suspension by the agency. Although appellant was. also referred to the Employee Assistance Program, he asserts that he was too fearful of the consequences to his job and too embarrassed to pursue this option. Appellant further avers that the ongoing emotional strain he has endured at the agency led to the breakup of an 11 year relationship with his girl friend, who wanted him to leave the agency as it made him short-tempered, moody, and hopeless. The Commission notes that damage awards for emotional harm are difficult to determine and that there are no definitive rules governing the amount to be awarded in given cases. Nonpecuniary damages must be limited to the sums necessary to compensate the injured party for actual harm, even where the harm is intangible, See, Carter v. Duncan-Higgins, Ltd., 727 F.2d 1225 (D.C. Cir. 1994), and should take into account the severity of the harm and the length of time that the injured party has suffered from the harm. EEOC Notice No. 915.002 at 14. In determining compensatory damages, the Commission strives to make damage awards for emotional harm consistent with awards in similar cases. See e.g., Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995) (award of $75,000 in nonpecuniary damages for deterioration in appellant's medical and emotional condition resulting in his disability retirement. Aggravation of asthma; panic attacks, insomnia, digestive problems, loss of spirit, social withdrawal, feelings of hostility and irritability, loss of libido); Finlay v. United States Postal Service, EEOC Appeal No. 01942985 (April 29, 1997) (award of $100,000 in nonpecuniary damages for severe psychological injury over four years which was expected to continue for an indeterminate period of time. This included ongoing depression, frequent crying, concern for physical safety, loss of charm, lethargy, social withdrawal, recurring nightmares and memories of harassment, a damaged marriage, stomach distress, and headaches). Our review of appellant's declaration in support of his request for compensatory damages herein indicates that it is detailed, credible, and corroborated by affidavits from coworkers and friends who personally observed the manifestations of appellant's emotional harm. We further find that these statements amply establish causation. In this regard, we wholly reject the agency's assertions on appeal that these effects may have resulted from appellant's prior period of unemployment and 'unrealistic expectations,' rather than the agency's discriminatory conduct. The weight of the testimony in the record concerning appellant's happy and positive attitude at the outset of his employment establishes no such thing. In particular, we disagree with the agency's characterization of appellant's expectations of reasonable accommodation from the agency as 'unrealistic.' While the medical evidence presented by appellant to corroborate his symptoms is sparse, the Commission has held that evidence from a health care professional is not a mandatory prerequisite for recovery of compensatory damages for emotional distress. Lawrence v. United States Postal Service, EEOC Appeal No. 01952288 (April 18, 1996); Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995). A complainant's own testimony, along with the circumstances of a particular case, can suffice to sustain his burden in this regard. Nonetheless, we further note that the absence of supporting evidence may affect the amount of damages deemed appropriate in specific cases. We are particularly mindful of the extended period of time over which appellant sustained these injuries and the profound loss of hope and dignity engendered by the agency's repeated and continued failure to provide him with the reasonable accommodation necessary in order for him to function independently in his position. The serious deleterious effects of this prolonged deprivation cannot and must not be underestimated. Moreover, appellant's emotional injury was clearly exacerbated by the agency's failure to select him as one of eleven applicants for ten VCE positions. Appellant viewed selection for one of these positions as his chance for a reprieve from his untenable situation and as an opportunity to 'use his brain' and his legal training in his employment. Consequently, it is abundantly clear that appellant's discriminatory nonselection for this position dealt a significant setback to his emotional health. In view of the severe 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. EEOC Regulation 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). REASONABLE HOURLY RATE In Blum, 465 U.S. at 895, the U.S. Supreme Court held that reasonable hourly rates are to be measured by the 'prevailing market rates in the relevant community.' The Commission notes that the burden is on the fee applicant to produce satisfactory evidence--in addition to the attorney's affidavits--that the requested rate, or rates in this case, are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation. Blum 465 U.S. at 895, n.11. In the present case, petitioner has sufficiently supported the request for a rate of $285 an hour for the services of Attorney Nos. 1, 2 and 4, and for the rate of $210 per hour for Attorney No. 3. Evidence is presented which indicates that Attorney No. 1 has requested a rate of $285 in at least one 1994 civil rights case before the San Francisco Superior Court. Moreover, petitioner submits affidavits from three San Francisco area attorneys who indicate that the rates requested by these attorneys are in accordance with the prevailing market rates in the area for attorneys of the same level of experience, reputation, and expertise in civil rights litigation (21, 15, 7. and 17 years of experience, respectively.10 While the agency notes that Attorney11 in one case mentioned, the attorney who attested to that rate pointed out that Attorney No. 1 received the lower rate for part-time pre-trial work she performed and that the attesting attorney ultimately received a $275 per hour rate for her services on that case. Moreover, we note that the present case involved complex disability discrimination issues and a three day hearing including expert witness testimony. Thus, we do not find the agency's blanket assertion that a lower rate is appropriate for the present case merely because it is heard at the administrative level to be persuasive. Based on the foregoing, we will award the requested rate. With regard to the work performed by law student interns, we find that the $60 rate claimed for the work of these law students is sufficiently supported in the documentation submitted with the fee petition, which indicates that firms in the area have received fees of approximately $95-$100 per hour for the work of paralegals and $50-60 per hour for the work of employees designated as 'case-clerks' or 'legal externs'.12 REASONABLE HOURS EXPENDED In determining the number of hours reasonably 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.' Hensley, 461 U.S. at 437, n.12. However, the attorney does have the burden of identifying the subject matters in which he spent his time, which can be documented by submitting sufficiently detailed contemporaneous time records to ensure that the time spent was accurately recorded. See National Association of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319 (D.C. Cir. 1982). 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. 'Hensley, 461 U.S. at 434. After careful review of the initial and supplemental fee petitions submitted herein, the Commission finds, similar to the agency's determination, that a significant number of billable hours claimed appear to have been excessive and/or duplicative. While we decline, as did the agency, to engage in a line by line analysis of the requests, we make the following general observations concerning the hours billed by DREDF and by Attorney Nos. 1 and 4 on this matter. Initially, we note that petitioner properly observes that the use of law clerks by DREDF to accomplish some less complex tasks, such as the drafting of discovery documents, was generally a sound and economical billing practice.13 To the extent, however, that the fee petitions submitted herein still reflect that excessive amounts of time were expended for conferences and telephone conversations between attorneys, appellant and law student interns,14 long time periods spent by interns reviewing files which later were reviewed again by attorneys, extensive review and digesting of depositions that do not appear to have been utilized at the hearing, and the attendance of a DREDF intern at the hearing in addition to an attorney, we deem such billings somewhat duplicative and excessive. It further appears that the services of two attorneys and multiple law students were used for the conduct of prehearing discovery, the nature of which was not sufficiently elaborated upon in the record. With regard to services performed on appeal, we note that an excessive amount of time appears to have been spent on the review of the 540 page hearing transcript by Attorney No. 1, that a significant number of hours are claimed for preparation of both a 'trial brief' and a 'post hearing brief' and also that there appears to be no clear necessity presented for some of the additional billing by DREDF attorneys once Attorney No. 1 became lead counsel on the case as a solo practitioner. Notwithstanding these observations, however, the agency's somewhat arbitrary allocation of specific amounts of billable hours for various actions which it deems reasonable is also inappropriate in that it fails to adequately compensate appellant's attorneys for much of the work they performed during discovery prior to the hearing, including representation at depositions, and during settlement negotiations.15 The agency also does not include additional work performed by Attorney No. 1 in attempting to secure agency compliance with the Commission's decision and does not sufficiently take into account amounts billed for preparation of the compensatory damages submission and preparation of the fee petitions. When a fee reduction is in order based on excessive hours, it is not necessary for the Commission to 'perform a detailed analysis to determined (sic) precisely the number of hours or types of work for which no compensation is allowed; rather, it is appropriate to reduce the hours claimed by an across-the-board reduction. 'Finch v. Postmaster General, 05880051 (1988), citing Brown v. Gillette Co., 34 FEP Cases 1828, 1833 (D. Mass. 1982); Copeland v. Marshall, 641 F.2d 880, 903 (D.C. Cir. 1980); Bradford v. Blum, 507 F. Supp. 526, 534 (S.D.N.Y. 1981). Our review of the fee petitions in this case and the observations we have noted in this decision indicate that such an across the board reduction of the DREDF hours by 30% is reasonable in this case. This will result in a fee award for DREDF of $70,462.35 (308.14 hours for the initial fee petition and 2.17 hours for the supplemental fee petition at the rates requested). With regard to Attorney 1, we find that a reduction of the hours claimed by 50% is appropriate, given her acknowledged high level of expertise and the fact that all of the work she performed in her solo capacity occurred after the investigation and hearing in this matter. Therefore, we reach a fee award for Attorney No. 1 of $30,064.65 (72.73 hours for the initial fee petition and 32.76 hours for the supplemental fee petition at the rates requested). We further find that the necessity for the services of Attorney No. 4 has not been adequately established by the fee petitions in that there is no indication of the specific issues on which she rendered guidance to Attorney No. 1 concerning federal sector processing and the need for the provision of such guidance to an attorney of Attorney No. 1's past experience. Therefore, these fees have been excluded from our calculations. FEE PETITION Both the courts and the Commission have adopted the rule that where a case proceeds to a trial or a hearing, fees awarded for litigating the fee application shall not exceed 5% of the fees incurred in litigating the main case. Coulter v. State of Tennessee, 805 F.2d 146, 151 (6th Cir. 1986); Nehemkis v. Department of Veteran's Affairs, EEOC Appeal No. 01891733 (November 16, 1989). The rationale behind this rule is that compensation for attorney's fees litigation should not be out of proportion to the main case. With regard to the amounts billed for preparation of the attorney's fees petitions herein, we have determined that application of the previously discussed across the board reductions to such hours will result in an proportional amount awarded for fee petition preparation ($3,419.92 or 13.69 hours) that does not exceed the SECOND SUPPLEMENTAL FEE PETITION None of the foregoing calculations include the second supplemental fee petition. This petition claims fees and costs for the preparation of the petition for enforcement and the appeal statement herein which have not yet been addressed in any respect by the agency and appear to be ongoing. Thus, we advise counsel to submit this fee petition to the agency upon conclusion of the current phase of this litigation. COSTS An agency may make payment of Costs contingent on the provision of documentation to support a claim for costs, such as bills for copying, telephone bills, or receipts for mailings. Davis v. Department of the Treasury, EEOC Request No. 05901213 (March 1, 1991). The record herein contains insufficient documentation to support petitioner's claim for telephone, expert witness fee, court reporting services, mail, facsimile, and photocopying costs claimed herein. The listing of these costs provided is generalized and does not explain the reasons for the costs incurred, so it would, be difficult to determine if they are reasonable. In particular, relatively large sums are requested for court reporter services from three different companies without explanation of the specific nature and necessity of the service provided. Moreover, there are no bills or other financial records to verify the specific costs for which reimbursement is requested. Since petitioner has presented insufficient information in the record for the Commission to make a determination on the amount of costs to which petitioner is entitled, we have determined that a reasonable expectation of the amount of Costs claimed is 50% of the claim presented herein; $2,157.88 for DREDF and $76.16 for Attorney No. 1. In addition to this across the board reduction in the costs claimed, and in light of the ambiguity in the record concerning the bills for multiple court reporting services, the agency is further advised that it is not required to pay more than once for the same court reporting service provided on the same date. CONCLUSION Based upon a thorough review of the record, and for the foregoing reasons, it is the decision of the Equal Employment Opportunity Commission to MODIFY the agency's final decision in this matter with regard to compensatory damages and attorney's fees. For the reasons stated above, the Commission finds that appellant shall ORDER The agency is ORDERED to take the following actions: (1) The agency shall pay appellant $80,000.00 in compensatory damages within sixty calendar days of the date this decision becomes final. (2) The agency shall award attorney's fees of $70,462.35 for work done by DREDF and $30,064.65 for work done by Attorney No. 1, less any attorney's fees already paid, within fifteen (15) calendar days of the date this decision becomes final. The agency shall also submit a report of compliance, as provided below. The record shall include documentation to verify that the action has been implemented. (3) Further, the agency shall award $2,157.88 for costs expended by DREDF and $76.16 for costs expended by Attorney No. 1, less any costs already paid. With respect to the costs claimed for court reporting services, however, the agency is directed that it need not pay more than one bill for the same service provided on the same date. (4)Unless otherwise specified, the agency shall accomplish each of the above actions within sixty (60) days of the date this decision becomes final. ATTORNEY'S FEES (H1092) If appellant 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 upon conclusion of the current phase of this litigation (within thirty (30) calendar days of the date by which both this decision and the decision on the pending petition for enforcement have become IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595) 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 appellant. If the agency does not comply with the Commission's order, the appellant may petition the Commission for enforcement of the order. 29 C.F.R. §1614.503(a). The appellant 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. § §1614.408, 1614.409, and 1614.503(g). Alternatively, the appellant 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. § §1614.408 and 1614.409. 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 appellant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. §1614.410. RECONSIDERATION (M0795) The Commission may, in its discretion, reconsider the decision in this case if the appellant or the agency submits a written request containing arguments or evidence which tend to establish that: 1. New and material evidence is available that was not readily available when the previous decision was issued; or 2. The previous decision involved an erroneous interpretation of law, regulation or material fact, or misapplication of established policy; or 3. The decision is of such exceptional nature as to have substantial precedential implications. Requests to reconsider, with supporting arguments or evidence, MUSTBEFILEDWITHINTHIRTY (30) CALENDARDAYS of the date you receive WITHIN TWENTY (20) CALENDAR DAYS of the date you receive a timely request to reconsider filed by another party. Any argument in opposition to the request to reconsider or cross request to reconsider MUST be submitted to the Commission and to the requesting party WITHINTWENTY (20) CALENDARDAYS of the date you receive the request to reconsider. See 29 C.F.R. §1614.407. All requests and arguments must bear proof of postmark and 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 filed on the date it is received by the Commission. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely. If extenuating circumstances have prevented the timely filing of a request for reconsideration, a written statement setting forth the circumstances which caused the delay and 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). RIGHT TO FILE A CIVIL ACTION (R0993) 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. It is the position of the Commission that 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. You should be aware, however, that courts in some jurisdictions have interpreted the Civil Rights Act of 1991 in a manner suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this decision. To ensure that your civil action is considered timely, you are advised to file it WITHIN (30) CALENDAR DAYS from the date that you receive this decision or to consult an attorney concerning the applicable time period in the jurisdiction in which your action would be filed. 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 Filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z1092) 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. §2000eet 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: Frances M. Hart Executive Officer Executive Secretariat July 17, 1998 1. This position was later reclassified as Veterans Claims Examiner (VCE). 2. Appellant has also filed a petition for enforcement of the Commission's Order. Bernard v. Dept. of Veterans Affairs, EEOC Petition No. 04960029. 3. Appellant's counsel later acknowledged that this amount was erroneous in that $300,000 was the maximum allowable under applicable law for future pecuniary and nonpecuniary losses. 4. Appellant indicated that he particularly desired this position as it would give him the opportunity to put his law degree to good use. 5. As accurately reported in the appeal brief submitted by appellant's counsel. 6. Total attorney's fees and costs claimed for the initial and supplemental fee petitions are as follows: for DREDF, $100,660.50 in fees and $4,315.75 in costs; for Attorney No. 1, $60,120.65 in fees and $152.31 in costs; and for Attorney No. 4, $1,781.25 in fees. 7. The agency failed to award any fees for the services of law student interns at DREDF, indicating that given the over 540 hours of attorney time claimed for the case, 111.60 hours of student time appeared to be duplicative. 8. The agency arrived at the rate of $250 per hour for attorney No. 1 by citing the $240.00 per hour rate cited as received by her in 1994 for litigation in court. The agency noted that the $285 rate requested might be reasonable for court, but not for administrative work. The agency awarded a $200 rate for the services of an attorney for which a $210 rate had been requested. The agency further stated that no more than a $40.00 an hour rate would have been warranted for law student time, citing the fact that staff attorneys in that office at the agency with 20 years of experience received a salary rate of less than that amount. 9. Regardless of an EEOC determination regarding the agency's allegations of good faith efforts at reasonable accommodation, appellant would remain eligible to claim a compensatory damages award for the emotional distress caused by the agency's intentional disability discrimination in his nonselection for the VCE position. 10. In particular, these affidavits attest to the substantial skill and excellent reputation of Attorney No. 1 among plaintiff's employment discrimination attorneys. 11. Attorney No. 1 indicates that she has received effectively higher rates in cases where a 'multiplier' was applied by the court. 12. We note that the U.S. Supreme Court has held that law clerks may be compensated at the market-rates for their services, rather than at their cost to the attorneys. Missouri v. Jenkins, 491 U.S. 274 (1989). 13. We note that Attorney No. 2 has indicated that she has only billed for 50 percent of the time expended by the law students. 14. The attorneys and law clerks billed approximately 70 hours of time related to such tasks. However, in many instances they were unable to provide sufficiently specific and/or detailed information as to the substance of these discussions, nor did they clarify why such conferences or discussions were necessary in each time entry, particularly in light of the billable hours requested. 15. Such attorney work has been deemed to be compensable, if reasonably expended. See Mareno v. Department of Veterans Affairs, EEOC Appeal 01943104 (February 14, 1996).