Complainant v. Deborah Lee James, Secretary, Department of the Air Force, Agency. Appeal No. 0720090009 Hearing No. 140-2005-00218X Agency No. 5V1C04007 DECISION Concurrent with its November 3, 2008 final order, the Agency timely filed1 an appeal which the Commission accepts pursuant to 29 C.F.R. § 1614.405(a). On appeal, the Agency requests that the Commission affirm its rejection of an EEOC Administrative Judge's (AJ) finding of discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. The Agency also requests that the Commission affirm its rejection of the relief ordered by the AJ. For the following reasons, the Commission REVERSES the Agency's final order and REMANDS the complaint for further action by the Agency. ISSUES PRESENTED The issues presented are (1) whether the Administrative Judge properly imposed a default judgment on the Agency as a sanction for its actions in the processing of Complainant's complaint, namely, that the Agency failed to timely submit the complaint file to the AJ, and (2) whether the remedies ordered by the AJ, which included the restoration of leave, removal of negative information in Complainant's personnel file, pecuniary and non-pecuniary compensatory damages, and attorney's fees, were supported by the record. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Maintenance Mechanic Supervisor, WS-4749-10, at the Agency's Seymour Johnson Air Force Base (SJAF Base) in North Carolina. Complainant had previously filed EEO complaints against the Agency in which she had alleged discrimination when she was not selected for a WL-10 work leader position in July 2000 and for a WS-10 Maintenance Mechanic Supervisor position in September 2000. In Complainant's first complaint regarding her non-selection for the work leader position, the Agency appealed an Administrative Judge's issuance of a decision without a hearing in EEOC Appeal No. 07A20100 (December 4, 2003). We determined that summary judgment in that case was improper, affirmed the Agency's rejection of the AJ's decision, and remanded the complaint for a hearing. Complainant prevailed on her claims at the hearing, after which the Agency accepted the AJ's finding of discrimination. In EEOC Appeal No. 01A40207 (August 19, 2004), Complainant appealed to the Commission to enforce the Agency's final decision in which it implemented an AJ's finding of discrimination on her claim of non-selection for the Maintenance Mechanic Supervisor position. Complainant was placed in the position at SJAF Base as of September 7, 2003. We also ordered enforcement of other elements of the AJ's Order. Complainant filed a third EEO complaint alleging that she was subjected to harassment between the period of April 2003 and April 2004. An AJ issued a default judgment in favor of Complainant on that complaint, due to the Agency's failure to initiate an inquiry following Complainant's EEO contact, failure to accept or dismiss the complaint, and failure to investigate the complaint. Neither party appealed the AJ's decision to the Commission. Subsequent to the complaint at bar, Complainant filed an EEO complaint claiming that she was also subjected to harassment between March 2005 and November 2005.2 That complaint was the subject of the appeal in EEOC Appeal No. 0120081004 (June 17, 2010), in which the Commission affirmed an Administrative Judge's determination that Complainant had not established her claim of discrimination. The same Commission AJ processed each of Complainant's hearing requests and issued all of the hearing decisions referenced in this appeal. On June 21, 2004, Complainant filed an EEO complaint (which she later amended four times) alleging that she was discriminated against on the bases of sex (female) and in reprisal for prior protected EEO activity arising under Title VII when: 1. From April through June 2004, the Agency did not give her a pin number for long distance calls; 2. From April through June 2004, the Agency made changes to the telephone listing after Complainant became supervisor; 3. From April through June 2004, the Agency did not provide Complainant a budget; 4. From April through June 2004, the Agency did not give Complainant "support" for shop management; 5. The Agency did not allow Complainant to administer appropriate disciplinary actions and removals; 6. The Agency accused Complainant of unauthorized commitment of funds and falsification of time cards; 7. The Agency charged Complainant with absence without leave (AWOL) for sick leave; 8. On April 20, 2004, Complainant received an unsatisfactory performance appraisal; 9. On April 29, 2004, Complainant received a 14-day suspension; 10. On October 26, 2004, Complainant's supervisor did not notify her of shop matters; 11. On October 27, 2004, and November 9, 2004, Complainant's supervisor falsified government records by giving her memos with untruthful and contradictory instructions/information than had been previously given to her; 12. On November 9, 2004, Complainant's supervisor instructed her to change the standby policy for the shop personnel; 13. On December 13, 2004, Complainant received a negative performance appraisal; 14. In January 2005, the EEO Office refused to accept documentation from Complainant regarding her case; 15. On January 10, 2005, Complainant's supervisor sent an e-mail counteracting her decision as a supervisor; 16. On January 12, 2005, Complainant's supervisor refused to leave the shop while the NCOIC team visited; 17. On January 19, 2005, Complainant's supervisor loaned her personnel to a contractor; and 18. On January 31, 2005, Complainant's supervisor wrote her up. Complainant requested a hearing in a letter dated April 9, 2005, which was more than 180 days after the filing of her initial complaint, but less than 180 days after her last amendment to the complaint on February 24, 2005. On April 15, 2005, the AJ issued an Order to the Agency to produce the complaint file within 15 days of receipt of her Order. The Agency asserted it had received the Order on April 20, 2005. The Agency mailed the complaint file on May 6, 2005, and the AJ received it on May 9, 2005. On May 5, 2005, however, Complainant filed a Motion for Sanctions with the AJ. Complainant requested the AJ to impose "very strong sanctions" against the Agency due to its failure to complete the investigation and produce it to the AJ, and in light of its adverse history with respect to Complainant's past treatment and its prior failure to investigate Complainant's earlier complaint. The Agency responded to Complainant's Motion for Sanctions on May 26, 2005, and asserted that it had made a good faith effort to comply with the AJ's Order and that sanctions should not be imposed. In the meantime, the Agency sent the completed Report of Investigation (ROI) to the AJ on May 17, 2005, and it was received by the AJ on May 19, 2005. Complainant received her copy on June 6, 2005. Thereafter, on May 25, 2005, the AJ issued the Acknowledgement and Order to the parties. On July 8, 2005, the AJ issued an Order Granting Complainant's Motion for Sanctions. In her Order, the AJ found that Complainant's hearing request had been postmarked on April 9, 2005, and that she had served it on the Commission's Raleigh Area Office, and to three different Agency offices, two of which were located at SJAF Base. The AJ found that the Charlotte District Office3 issued the Order Directing the Agency to Produce Complaint File on April 15, 2005, giving the Agency 15 days from the receipt of the Order, or from the receipt of Complainant's hearing request, to provide a complete complaint file to the Commission. The Order noted that the complaint file must be forwarded even in the absence of a completed Report of Investigation, or provide good cause to the AJ as to why it was not possible. The Order advised the parties of the possibility of sanctions for failure to comply and failure to show good cause. The Order was issued on Charlotte District Office letterhead and provided the direct-dial and fax machine telephone numbers for the AJ in Raleigh. It was served on Complainant, her attorney, and two Agency personnel at Seymour Johnson Air Force Base. Complainant's Motion for Sanctions was filed on May 5, 2005, and alleged that the Agency had failed to comply with the Order by May 4, 2005, and had failed to properly investigate Complainant's claims, and noted the previous imposition of a sanction against the Agency the previous year for the same infraction. The AJ found that the Agency had submitted the complaint file on May 6, 2005, with a cover letter dated May 2, 2005, which was received in the Charlotte District Office on May 9, 2005. The complaint file did not contain the Report of Investigation, which the Agency represented was not yet complete. The Agency forwarded its copy of the completed Report of Investigation to the Charlotte District Office on May 17, 2005. Complainant did not receive her copy until June 6, 2005. The Agency's response to the Motion for Sanctions and an Adverse Inference stated that it received the Order to produce the complaint file on April 20, 2005, thereby making the due date for submission of the file May 5, 2005. The Agency representative noted that the Order's letterhead gave a Charlotte address, even though the AJ's telephone numbers were in Raleigh. As the Agency representative was new and had not yet been fully trained, she then attempted to confirm which address was the proper one to which to send the file. The Agency representative claimed to have attempted to contact the AJ the weeks of April 25, 2005, and May 2, 2005, but that voicemail informed her that the AJ was unavailable each week. The Agency representative's supervisor returned from leave and told her to send the file to Raleigh. The AJ's program assistant then returned a message and told the Agency representative to send the file to Charlotte, and that it was not necessary to express mail or deliver the files. The Agency representative stated that, on May 3, 2005, she prepared the files for mailing and personally took the package to the SJAF Base Information Transfer Center (Military Post Office). A civilian U.S. Postal Service employee signed for the package, and was to give it to the Military Post Office employee for preparation for mailing and to be affixed with postage. This did not occur until May 6, 2005. The AJ found in her Order Granting Complainant's Motion for Sanctions that the Agency had failed to show good cause for the delay in producing the complaint file. She found that the Agency was on notice of the hearing request through Complainant's April 9, 2005, letter. She found that the Agency therefore should have produced the file to the Charlotte District Office within 15 days of receipt of that letter, or by April 26, 2005, which it failed to do. In the alternative, the AJ found that the Agency should have produced the file to the Charlotte District Office within 15 days of receiving the Order on April 20, 2005, or by May 5, 2005. The AJ specifically found the Agency's assertions of a good faith effort to ascertain the proper address not to be credible. She noted that the Charlotte address was on the Order, that her telephone numbers were below the signature line, that the AJ was in the office the week of April 25, 2005, and, therefore, the Agency representative could not have tried to contact her during that week. She further found that the Agency did not timely produce the complaint file, in that it was not postmarked by May 5, 2005, and that the breakdown in interaction between the SJAF Base Information Transfer Center and the U.S. Postal Service was not good cause for the failure to timely produce the file. The AJ granted Complainant's Motion for Sanctions based on the Agency's failure to produce the complaint file by May 5, 2005. Further noting, however, the "history of problems with the agency producing the complaint file for this same complainant in April 2004," the AJ found that a sanction to deter the Agency from similar conduct in the future was appropriate. The AJ decided that an appropriate sanction would be to draw an adverse inference against the Agency and to render a decision in Complainant's favor. She stated that a default judgment would be issued as a sanction. On August 9, 2005, the Agency asked the AJ to reconsider her Order Granting Complainant's Motion for Sanctions, but the AJ upheld the Order on September 19, 2005. On March 6, 2006, the AJ issued a Notice and Order of Joint Hearing, in which the AJ notified the parties that the hearing on damages for the instant case would be held jointly with the hearing on the merits of Complainant's claims in the complaint at issue in EEOC Appeal No. 0120081004. The hearing was held from June 26 through June 28, 2006. A Default Judgment and Order Regarding Attorney's Fees was issued on September 27, 2007, in which the AJ ordered Complainant to submit a verified statement of fees and costs within 15 days of the Order. The AJ issued her final Default Judgment decision on September 15, 2008. In her September 15, 2008 decision, in which she made a default finding in favor of Complainant, the AJ found that the Agency mailed the complaint file one day late, based on the postmark of May 6, 2005, on the mailing envelope. The AJ made findings of fact which essentially took Complainant's allegations in her complaint as true. The AJ then applied a summary judgment framework to the complaint. She found that Complainant had established a prima facie case of sex discrimination. She also found that Complainant had established a prima facie case of reprisal discrimination in that she had prior protected activity in December 2000, April 2001, April 2003, and April 2004; her first-level supervisor was aware of the activity and of the previous EEO findings in Complainant's favor; and that she had been subjected to adverse actions. The AJ then applied an adverse inference and found that the Agency had failed to produce a legitimate, nondiscriminatory reason for any of its actions, and had failed to meet its burden. She therefore found that Complainant had shown that the Agency had discriminated against her on the bases of sex and reprisal. Pursuant to her finding for Complainant, the AJ awarded damages to Complainant. She awarded attorney's fees and costs in the amount of $51,081.48. She awarded $4,308.40 in past medical expenses, and $4,539.18 in future pecuniary damages. The AJ found that an award of $25,000 in non-pecuniary compensatory damages would be consistent with other awards issued by the Commission in similar cases, but awarded $100,000 in non-pecuniary damages to "take into account the severity and duration of the harm done to complainant by the agency's repeated discriminatory conduct and lack of good faith effort in the EEO process" and the "aggravation of her anxiety and depression" caused by the Agency's discriminatory actions. Additionally, the AJ ordered reimbursement of $630.50 in Complainant's mileage and costs incurred in adjudicating the complaint, the restoration of 675.75 hours of leave, that the Agency should grant Complainant a liberal-leave policy for the next six months from the decision, and that the Agency should remove or rescind all negative information during the period of April 2004 through January 2005 from Complainant's personnel file. The AJ ordered the Agency to provide EEO training to Complainant's first-level supervisor and unit, and to post a notice of a finding of discrimination at the Seymour Johnson Air Force Base. On November 3, 2008, the Agency issued a final order in which it rejected the AJ's decision, and concurrently filed an appeal with the Commission. CONTENTIONS ON APPEAL On appeal, the Agency objects to the AJ's decision to issue a default judgment in favor of Complainant. The Agency argued that entering a default judgment and assessing damages against the Agency because the postmark on the complaint file was one day late was a clear abuse of discretion by the AJ. The Agency noted that a request for an expedited investigation was forwarded to the Department of Defense Office of Complaint Investigations (OCI), which handles the Agency's EEO investigations, on November 10, 2004. Complainant's further amendments to her complaint were subsequently sent to OCI, and the investigation was conducted from March 15, 2005 to April 8, 2005. The next day, April 9, 2005, Complainant submitted her request for a hearing. The Agency argued that its representative delivered a copy of the complaint file, minus the not yet completed Report of Investigation, to the SJAF Base post office on May 3, 2005, with instructions that it was to go out the same day, but which did not happen until May 6, 2005. The Agency argued that the issuance of a default judgment was grossly disproportionate to the violation of the order to produce the complaint file, and constituted an abuse of discretion. The Agency cited the AJ's statement referencing its failure to produce a complaint file for the same complainant in a prior case in April 2004 as evidence that the AJ sought to unduly punish the Agency for its failure to timely mail the complaint file in this complaint. The Agency noted that it had already been subjected to a default judgment in the prior case, and had taken "positive steps" to fix the problems with its EEO processing system as a result. It argued that its failure in this case, in contrast, was not a failure to accept, investigate, or process the complaint (as before), but rather a failure to timely comply, by one day, with the Order to produce the file. It argued that the default judgment was "meant to punish the Agency for irritating the AJ." The Agency detailed its efforts to fix the EEO processing system at SJAF Base pursuant to the prior default judgment, which it did not appeal to the Commission. It argued that its failures in the two complaints did not merit the equivalent sanction of default judgment. Examining the factors used in previous decisions issued by the Commission in determining an appropriate sanction, the Agency noted that its representative had not acted in a willful or contumacious manner, that there was no prejudice to Complainant in the late service (noting that Complainant had just submitted her rebuttal to the management officials' statements on April 8, 2005, the day before she made her hearing request), that the late filing did not cause a delay in the processing of the case, that this was the first infraction of the Agency in this complaint, and that the failure to have the file postmarked by May 5, 2005, did not have an adverse effect on the integrity of the EEO process. The Agency objected to the AJ's failure to narrowly tailor the sanction to the actual offense committed by the Agency. The Agency also argued that the award of damages was not supported by fact or law, and amounted to an "impermissible assessment of punitive damages against the Agency." Arguing in the alternative in the event the default judgment would be upheld on appeal, the Agency argued that the AJ's award of $100,000 in non-pecuniary compensatory damages was unsupported by the facts of the case, and by the evidence in the record regarding Complainant's prior medical and personal history. It argued that the evidence did not support linking all of Complainant's medical and psychological problems to the alleged discriminatory events. It also noted that the AJ cited prior Commission cases awarding damages in the range of $20,000 to $35,000 for similar injuries in her discussion of damages, but then awarded $100,000, with no explanation of the difference in amounts. The Agency highlighted the AJ's citation of its "lack of good faith effort in the EEO process" as support for its argument that the AJ award was punitive in nature. In response, Complainant argued that the AJ's imposition of a default judgment was not an abuse of discretion. Complainant noted that the Agency received her hearing request on April 14, 2005, and was required to produce the file by April 29, 2005, even though the AJ set a deadline of May 5, 2005. She argued that, despite the previous default judgment, the Agency had not corrected the deficiencies in its EEO processing, warranting the imposition of a second default judgment in order to deter future misconduct. Complainant also argued that the Agency had not shown good cause for its late filing of the complaint file, that a valid address was listed in the AJ's Order to which to send the file, and that the Agency should not be able to excuse its untimely filing by blaming its own internal mailing system. Complainant argued that, assuming the default judgment is upheld, the award of damages was supported by substantial evidence as introduced in documentary evidence and hearing testimony, and that the $100,000 non-pecuniary compensatory damages award was appropriate based on the emotional harm suffered by Complainant. She disputed the Agency's characterization of the amount of the award as punitive or as a secondary sanction, and asked the Commission to uphold the default judgment and to sustain the AJ's award of $100,000 in non-pecuniary compensatory damages. ANALYSIS AND FINDINGS Review of the AJ Decision The Commission's regulations afford broad authority to AJs for the conduct of hearings. See 29 C.F.R. § 1614.109 et seq.; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 7, Sec. III(D) (Nov. 9, 1999). An AJ has inherent powers to conduct a hearing and to issue appropriate sanctions, including a default judgment. See id.; Matheny v. Dep't of Justice, EEOC Request No. 05A30373 (April 21, 2005); Rountree v. Dep't of the Treasury, EEOC Appeal No. 07A00015 (July 17, 2001). Specifically, our regulations provide that where a party, inter alia, fails to respond to an order of an AJ, the AJ may, as appropriate, take action against the non-complying party pursuant to 29 C.F.R. § 1614.109(f)(3), i.e., an AJ may: (1) draw an adverse inference that the requested information would have reflected unfavorably on the non-complying party; (2) consider the requested information to be established in favor of the opposing party; (3) exclude other evidence offered by the non-complying party; (4) issue a decision fully or partially in favor of the opposing party (emphasis added); or (5) take other action deemed appropriate, e.g., payment of costs and expenses by the non-complying party. Id. Before taking any of the actions authorized by the Commission's regulations, an AJ must first issue a Notice to Show Cause to the non-complying party. Management Directive for 29 C.F.R. Part 1614 (MD-110), Ch. 7, Sec. III(D), fn. 6; see DaCosta v. Dep't of Education, EEOC Appeal No. 01995992 (Feb. 25, 2000). Having reviewed the matter, we find that the AJ's decision to sanction the Agency was proper. Complainant filed her hearing request on April 9, 2005. Although the Agency was not yet required to have completed the ROI due to Complainant's several amendments, she was within her rights to request a hearing, as more than 180 days had passed since the filing of her initial complaint. See 29 C.F.R. § 1614.106(e)(2); 29 C.F.R. § 1614.108(g). The AJ's Order of April 15, 2005, clearly ordered the Agency to provide the complaint file within 15 days of its receipt of the Order. The April 15, 2005 Order also put the Agency on notice that sanctions may be imposed for failure to comply, absent good cause shown. The Agency failed to ensure that the complaint file was mailed before the May 5, 2005 deadline, although the Agency representative averred that she had made her best efforts to do so. The AJ did not credit the Agency representative's reasons for the late mailing, and determined that a sanction was appropriate. Determination of the Sanction In general, the Commission has held that sanctions, while corrective, also act to prevent similar misconduct in the future and must be tailored to each situation, applying the least severe sanction necessary to respond to the party's failure to show good cause for its actions, as well as to equitably remedy the opposing party. See Gray v. Dep't of Defense, EEOC Appeal No. 07A50030 (Mar. 1, 2007); Rountree v. Dep't of the Treasury, supra; Hale v. Dep't of Justice, EEOC Appeal No. 01A03341 (Dec. 8, 2000). The Commission's interest lies in deterring the underlying conduct of the non-complying party, and protecting its administrative process from abuse by either party to insure that agencies, as well as complainants, abide by its regulations. See Royal v. Dep't of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009). The factors pertinent to "tailoring" a sanction, or determining whether a sanction is, in fact, warranted, include: (1) the extent and nature of the non-compliance, including the justification presented by the non-complying party; (2) the prejudicial effect of the non-compliance on the opposing party; (3) the consequences resulting from the delay in justice, if any; and (4) the effect on the integrity of the EEO process. Gray v. Dep.t of Defense, supra; Voysest v. Social Security Admin., EEOC Appeal No. 01A35340 (Jan. 18, 2005); Royal v. Dept. of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009). We conclude that the default judgment in Complainant's favor was not an abuse of discretion for the reasons which follow. Default judgment is an appropriate sanction for the infraction, the mailing of the complaint file one day late, especially based on the history of the Agency and Complainant. We note that the AJ and Complainant have both emphasized the Agency's past conduct and failures in its processing of Complainant's previous EEO cases. This same AJ imposed a default judgment against the Agency in Complainant's previous EEO complaint. In the previous complaint, the Agency had failed to issue Complainant a notice of right to file, failed to accept her complaint for processing, and failed to investigate the issues in Complainant's complaint. The Agency did not contest the default judgment in that case. Although the Agency represented that it had implemented positive steps to correct its processing deficiencies at SJAF Base, we find that the processing of the instant case still failed to adhere to the time frames contained in the regulations and those contained in the Orders of the AJ. In other appeals of default judgments issued by AJs for failure to comply with the requirements of the 29 C.F.R. Part 1614 process, the Commission has affirmed the default judgments, in the interest of protecting the integrity of the EEO process. See Royal v. Dep't of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009); Reading v. Dep't of Veterans Affairs, EEOC Appeal No. 07A40125 (Oct. 12, 2006); Lomax v. Dep't of Veterans Affairs, EEOC Appeal No. 0720070039 (Oct. 2, 2007), req. for recon. den., EEOC Request No. 0520080115 (Dec. 26, 2007); Elston v. Dep't of Transportation, EEOC Appeal No. 07A50019 (Oct. 18, 2005), req. for recon. den., EEOC Request No. 05A60283 (Jan. 5, 2006). Complainant mailed a copy of her April 9, 2005, hearing request to the AJ and to three different offices at the Agency, two of which were located on SJAF Base. The Agency was presumably on notice then, before the receipt of the AJ's April 15, 2005, Order Directing the Agency to Produce Complaint File, that it would be required to submit the complaint file to the AJ within 15 days of receipt of the hearing request. Complainant argued that the Agency received her hearing request on April 14, 2005, and was therefore required to produce the file by April 29, 2005. The AJ alternatively calculated the Agency's deadline to submit the file using the date on which the Agency received the AJ's Order, finding that it was due within 15 days from April 20, 2005, or by May 5, 2005. The Agency postmarked the file on May 6, 2005. By either date, the Agency was untimely. We find that the sanction of a default judgment was appropriately tailored by the AJ to impress upon the Agency the need to comply with AJ Orders, as well as the relevant timeframes of the EEO process. Remedy Following Default Judgment As we have determined that the sanction issued by the AJ was appropriate, and Complainant has prevailed in her complaint, we turn to whether the remedy ordered by the AJ was appropriate. The Agency argued that in the event that the Commission upheld the AJ's finding for Complainant, the award of damages was not supported by fact or law, and amounted to an "impermissible assessment of punitive damages against the Agency." Complainant requested $8,616.79 for reimbursement for past medical expenses and medications. The AJ found that Complainant had submitted objective evidence in the form of statements and medical notes which established that the medical expenses she incurred were directly related to the discrimination. Complainant suffered from situational anxiety, depression, nausea, tension, and hypersomnia due to the work situation. She also established that she suffered from sleeping poorly, having no energy, interest or motivation to engage in activities. The AJ awarded past pecuniary damages in the amount of $4,308.40 for her medical expenses and medications, finding that the requested amount should be cut in half due to Complainant having been awarded future medical expenses in the prior findings of discrimination in her earlier cases. Complainant requested $6,052.24 for reimbursement for future medical expenses and medications. The AJ found that Complainant had not proffered evidence on the length of her continued medical expenses, but that her medical professional's estimation would support a "majority of the requested amount." The AJ noted that the evidence also showed that Complainant's future medical expenses would also be related to anxiety and depression "outside of the scope of this complaint," so she found that three-quarters of the requested amount was an appropriate award, for a total of $4,539.18. Additionally, the AJ ordered reimbursement of $630.50 in Complainant's mileage and costs, the restoration of 675.75 hours of leave, that the Agency should grant Complainant a liberal-leave policy for the next six months from the decision, and that the Agency should remove or rescind all negative information during the period of April 2004 through January 2005 from Complainant's personnel file. The AJ ordered the Agency to provide EEO training to Complainant's first-level supervisor and unit, and to post a notice of a finding of discrimination at the Seymour Johnson Air Force Base. Neither of the parties contested the AJ's award with respect to the amounts of any of the past or future pecuniary damages, or with respect to the other remedies ordered to make Complainant whole, nor with regard to the amount of attorney's fees and costs awarded. As such, we decline to review these aspects of the award, and affirm the AJ's awards of the above without comment. Complainant requested $200,000 in non-pecuniary compensatory damages. The AJ found that an award of $25,000 in non-pecuniary compensatory damages would be consistent with other awards issued by the Commission in similar cases, but then awarded $100,000 in non-pecuniary damages to "take into account the severity and duration of the harm done to complainant by the agency's repeated discriminatory conduct and lack of good faith effort in the EEO process" and the "aggravation of her anxiety and depression" caused by the Agency's discriminatory actions. We find that the AJ properly assessed the evidence introduced at the hearing in support of Complainant's request for non-pecuniary compensatory damages, and properly found that Complainant was entitled to an award of $25,000. We further find the AJ's determination that Complainant was instead entitled to an award of $100,000 in order to compensate her for the severity and duration of the harm caused by the Agency's "repeated discriminatory conduct and lack of good faith effort in the EEO process" to be a clear error of law. The AJ's increased award is punitive in nature. Punitive damages are not available against the federal government. See 42 U.S.C. § 1981a(b)(1); York v. Dep't of the Navy, EEOC Appeal No. 01930435 (Feb. 25, 1994). The Agency has already been subjected to two default judgments with regard to Complainant's complaints, in this complaint and in a previous complaint, and has been found in two previous cases determined on the merits to have discriminated against Complainant. Complainant was remedied appropriately in the previous complaints. The AJ cannot punish the Agency for its previous transgressions again by means of an increased award of compensatory damages in this case.4 Therefore, we find that the award of $25,000 is the appropriate award to remedy Complainant for the discrimination found in this complaint. Complainant's attorney submitted a fee petition for $63,581.48 in attorney's fees and costs. The AJ reduced the award by $12,500.00 based on unclear, inconsistent, and redundant charges. She awarded attorney's fees in the amount of $48,875.00 and costs in the amount of $2,206.48. We affirm the AJ's award of $51,081.48 in attorney's fees and costs. We note that complainant is entitled to an additional attorney's fees award for the work performed in the course of this appeal. CONCLUSION We find that the Administrative Judge properly imposed a default judgment on the Agency as a sanction for its actions in the processing of Complainant's complaint, and find that the remedies ordered by the AJ should be modified. Therefore, based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final order, and REMAND the complaint to the Agency for further processing. ORDER Within sixty (60) days of the date this decision becomes final, the Agency shall: 1. Pay Complainant $25,000.00 in non-pecuniary compensatory damages; 2. Pay Complainant $4,308.40 in medical expenses; 3. Pay Complainant $4,539.18 in future pecuniary damages; 4. Pay Complainant $630.50 in mileage and costs; 5. Pay Complainant's attorney of record $51,081.48 in attorney's fees and costs; 6. Restore 675.75 hours of leave; 7. Remove or rescind all negative information contained in Complainant's personnel file for the relevant time period (April 2004 through January 2005); 8. Provide eight (8) hours of EEO training to Complainant's first-level supervisor and unit; 9. Consider taking appropriate disciplinary action against the responsible management officials. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure date(s). 10. Post a notice in accordance with the paragraph below. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented. POSTING ORDER (G0914) The Agency is ordered to post at all facilities within the authority of the Seymour Johnson Air Force Base copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 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 10 calendar days of the expiration of the posting period. ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0610) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. Filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0610) If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action"). FOR THE COMMISSION: ______________________________ Carlton M. Hadden, Director Office of Federal Operations June 5, 2015 Date 1 Although Complainant argues on appeal that the Agency's appeal is untimely, after a review of the briefs regarding timeliness and the evidence submitted by the Agency, we find that the Agency's appeal was filed within the 40-day limit found at 29 C.F.R. § 1614.110(a). 2 Complainant was removed from her position because of her physical inability to perform the functions of her position in June 2006. There is no record of Complainant filing an EEO complaint regarding her removal. 3 The Charlotte District Office is the supervising office for the Raleigh Area Office, where the AJ was physically located. 4 As discussed in the text earlier, it nonetheless was appropriate for the AJ to rely on the already-remedied transgressions of the Agency in determining that a default judgment was the appropriate sanction to impose in this case. In that regard, the Agency's past transgressions, while remedied, served to establish a pattern of misconduct by the Agency. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0720090009 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0720090009