KATHLEEN MOHAR COMPLAINANT,
v.
PATRICK R. DONAHOE, POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE, AGENCY.

Appeal No. 
0720100019
Hearing Nos. 550-2008-00083X, 550-2008-00084X, 550-2008-00085X
Agency Nos. 4G-870-0022-05, 4G-870-0001-06, 4G-870-0035-06

August 29, 2011

DECISION

Following its November 23, 2009 final order, the Agency filed an appeal challenging the October 12, 2009 decision of an EEOC Administrative Judge (AJ) regarding remedies awarded in the above referenced matters. Complainant filed a cross-appeal also challenging the award of remedies. Both appeals were timely filed, and the Commission accepts them both pursuant to 29 C.F.R. § 1514.405(a).

On appeal, neither party disputes the AJ's determination that the Agency retaliated against Complainant regarding certain specified incidents raised in the above-referenced complaints. The parties also do not dispute the AJ's finding of no discrimination regarding the remaining claims raised in the complaints. Instead, the Agency request that the Commission affirm its rejection of the AJ's award of back pay, compensatory damages, attorney fees and costs, and placement of the Notice of Posting. Complainant requests additional payment in all of these categories, as well as additional equitable relief.

For the following reasons, the Commission MODIFIES the Agency's final order.

ISSUES PRESENTED ON APPEAL

Are the AJ's awards of damages, attorney fees, and equitable relief, as set forth in her October 12, 2009 decision, supported by substantial evidence?

BACKGROUND

During the period at issue, Complainant worked as a part-time flexible clerk at the Agency's Sandia Park Post Office facility in Sandia Park, New Mexico.

On January 18, 2005, October 28, 2005, and February 27, 2006, respectively, Complainant filed the above-captioned EEO complaints. After the investigation of these complaints, Complainant requested a hearing before an EEOC AJ. The AJ consolidated the formal complaints, and conducted a hearing.

In Agency Complaint No. 4G-870-0022-05 (Complaint 1), Complainant raised the following claims:
(1) The Agency subjected Complainant to unlawful discrimination and/or harassment, based on disability (knee injury) or in reprisal for prior protected activity from approximately September 2004 through January 20, 2005, regarding denial of leave request, scheduling issues, discipline, being placed off the clock, and threatened with termination.
(2) The Agency unlawfully denied Complainant's request for a reasonable accommodation (breaks or sedentary work), in retaliation for prior EEO activity in January 2005.

In Agency Complaint No. 4G-870-0001-06 (Complaint 2), Complainant raised the following claim:
(3) The Agency subjected Complainant to unlawful discrimination and/or harassment, based on her disability (knee injury), and/or in reprisal for prior protected activity, when in September and November 2005, she was denied higher level work and denied the opportunity to train a new clerk.

In Agency Complaint No. 4G-870-0035-06 (Complaint 3), Complainant raised the following claim:
(4) The Agency subjected Complainant to unlawful discrimination and/or harassment, based on her disability (knee injury), and/or in reprisal for prior protected activity when:
--in December 2005, Complainant's supervisor scheduled her for fewer hours than her co-workers;
--in January 2006, the Agency denied her the opportunity to work at the Cedar Crest Post Office;
--in March 2006, the Agency charged Complainant for a cash shortage;
--in April 2006, Complainant overheard a disparaging discussion;
--in May 2006, Complainant was subjected to physical and verbal threats by a co-worker; and
--in May 2006, the Agency excluded Complainant from attending a stand-up safety talk.
(5) The Agency failed to accommodate Complainant in reprisal for prior protected activity by denying her a detail in May 2006.

In an October 12, 2009 decision, the AJ found that the Agency subjected Complainant to retaliatory harassment regarding Complaints 1 and 3, but not Complaint 2. The AJ found no liability on the basis of disability on any of the claims.

The AJ ordered the Agency to provide the following relief:
1. An award of back pay, with interest, and all other benefits (leave restoration, health insurance, retirement benefits) due Complainant for "the periods she was absent from work from January of 2005 and May of 2006."
2. Compensatory damages of $129,000.00 for physical and mental pain and suffering; past pecuniary damages for medical expenses incurred and future medical costs.
3. The posting of a Notice in all Albuquerque District Postal facilities that reprisal for engaging in protected EEO activity shall not recur.
4. The Agency shall provide at least eight hours of EEO training on the prohibition of reprisal to the employees and management officials still employed by the Agency who were involved in the decision, or took actions to harass Complainant.
5. Attorney fees, litigation expenses and costs, in the amount of $172,188.77

Both parties now appeal, accepting the AJ's liability determination, but challenging the amount and type of relief ordered.

CONTENTIONS ON APPEAL

Agency's Appeal
The Agency argues that the back pay award is overly broad, covering time periods during which no liability was found. The Agency contends that liability for back pay with benefits, or leave restoration, is limited to the following periods: January 1, 2005 to March 31 2005; and December 1, 2005 to January 31, 2006.

Next, the Agency argues that the award of non-pecuniary compensatory damages in the amount of $100,000.00 is excessive. The Agency specifically argues that the AJ did not consider factors unrelated to the proved retaliatory acts, which contributed to Complainant's pain and suffering. The Agency notes Complainant's contention that the cumulative nature of adverse workplace treatment, dating to 2001, was causative in the ultimate severity of emotional distress. The Agency argues that the AJ should have discounted harm associated with those adverse actions for which no liability was found, and should have limited the damages solely to harm associated with proved retaliatory acts. The Agency argues that these acts occurred from approximately November 2004 to March 2005; and from December 2005 to May 2006. Moreover, the Agency asserts that other non-worker related factors contributed to emotional stress, to include financial problems created the payment of a substantial "up front" legal fee, stress associated with participation in the EEO process, death of Complainant's dog, and pain and incapacity associated with a knee injury. The Agency argues that limitation non-pecuniary damages in this manner would result in a $30,000.00 award, citing numerous Commission decisions in support of this amount.

Regarding pecuniary compensatory damages, the Agency argues that the AJ did not explain how she computed the award amount for future medical expenses, and that the award is excessive. In performing its own calculations, based on three years of future once-a-week psychiatric treatment at the therapist's current rate (including mileage costs), the Agency arrived at the amount of $15,825.00. Added to documented past medical expenses of $8,143.31, the Agency claims that the total award would be $23,968.00. However, the Agency further argues that this amount should be reduced by 50%, because Complainant's level of emotional distress substantially results from factors not associated with the Agency's unlawful reprisal against Complainant.

Regarding attorney fees, the Agency argues that the AJ did not properly apply the lodestar method by performing the calculation using the prevailing Washington, D.C. rate, rather than the rate in Albuquerque, New Mexico. The Agency also argues that the AJ did not properly discount the fee by taking into account the excessive billed hours. The Agency identifies what it deems multiple instances of unreasonable amounts of time spent on the identified task, insufficient task descriptions, repetitive work, clerical work, excessive telephone calls, work on matters unrelated to the instant litigation, and improperly billed travel expenses. Further, the Agency argues that the AJ erred in finding that all of the claims at issue had a common core, and that the attorney fee award should be limited only to those claims upon which Complainant prevailed. The Agency argues that when using the proper hourly rate, excluding excessive billing, and performing a 45% across-the-board reduction due to Complainant's limited success, attorney fees of $48,770.87 are reasonable.

Furthermore, the Agency argues that the AJ awarded too much for litigation costs, contending that Complainant included costs not eligible for recovery, excessive costs, and costs lacking adequate documentation.

Finally, the Agency argues that the AJ erred in requiring that the Notice be displayed at all postal facilities in the Albuquerque postal district. The Agency asserts that EEOC regulations require that the Notice need only be displayed at the facility where the discrimination occurred.

Complainant's Cross Appeal
On appeal, through her attorney, Complainant argues that the AJ erred by awarding too little compensatory damages and attorney fees and costs. Complainant argues further that the AJ failed to include all equitable relief. Complainant requests that the Commission modify the AJ's award of remedies.

Complainant asserts that the AJ erred by awarding only $100,000.00 in non-pecuniary compensatory damages, and that the fair amount is $300,000.00. Complainant argues that her testimony, as well as that of her therapist, two friends, and an expert medical witness warrants a higher award. Complainant argues that because of Agency discrimination, she was transformed from a happy, active social person to one who is sad, anxious, irritable, and who avoids social contact. Complainant argues further that the AJ did not consider evidence by her treating therapist, and an expert psychologist, who agree that Complainant's emotional stated was cause primarily by conduct that the AJ found discriminatory; and that she suffers from major depression and post traumatic stress disorder (PTSD), which was triggered by an unsafe work environment which the Agency took no action to address. Complainant argues that she has nightmares and frequent illnesses, and feels as if she is the "scum of the earth" because of her need to rely on friends for food and money.

Complainant also argues that the AJ erred in not compensating her for a loss of reputation. Complainant makes specific reference to an email from an Agency manager, to six other Agency managers, stating that Complainant's harassment complaint against a co-worker was a mere fabrication, and that Complainant is simply a troublemaker. Complainant asserts that this statement is untrue, and badly damaged her reputation. Complainant asserts that she is entitled to $50,000.00 for the resulting harm, and should receive it as a separate award.

Moreover, Complainant disputes the Agency position that the emotional harm suffered from the death of her dog should be discounted from compensable damages. Complainant argues that the dog had a treatable condition, but that she could not afford treatment: because of an income loss due to the Agency's conduct.

Complainant asserts that the AJ failed to take into account the degree of emotional harm she suffered when awarded only $100,000.00 in non-pecuniary damages. Complainant argues that he award should even be greater than those she has cited in numerous cases, to reflect present day dollar value. Complainant also argues that the degree of emotional harm should not be discounted by any other factors, such as the death of her dog or worry over debt. Complainant asserts that all emotional suffering derives from the Agency's discriminatory actions.

Complainant also argues that the AJ failed to order back pay regarding several instances when she was denied work: on December 8, 14, and 30, 2004, Complainant reported for work as scheduled, but was sent home; on January 13, 2005, the Agency sent Complainant home after two hours; and on January 18 - 21 2005, and January 27, 2005, the Agency sent Complainant home after two hours. Additionally, Complainant argues that the back pay period specified in the AJ's Order is unclear. Complainant states she does not dispute back pay during the period of January 27, 2005 through April 1, 2005, and May 2006 through September 13, 2007. Additionally, Complainant argues that the AJ erred in failing to restore leave taken for therapy, and to provide her with an award to cover the adverse income tax consequences from receipt of the damage award.

Regarding future treatment, Complainant notes the statements by her treating therapist and the expert psychologist, who agreed that this need would continue for at least one year (treating therapist), up to perhaps three years (expert psychologist). Both agreed that these periods would be much longer if Complainant were returned to work under the supervision of the same managers, because she would not feel safe. Complainant argues that because two years have now passed, these projected future medical expenses should now be characterized as past medical expenses, and an additional three years for the cost of future treatment should be added. Complainant avers that additional future treatment is justified because, as of the time of the hearings, she was still under the supervision of the two identified managers.

Regarding equitable relief, Complainant argues that the AJ erred by failing to order the Agency to reassign Complainant to a location of her choice. Complainant also asks the Commission to order the Agency to provide a public apology from the manager who sent an email calling her a liar.

Next, Complainant argues that the AJ improperly reduced her attorney fee petition from $191,993.93 to $146,000.00. Complainant states that the AJ improperly found that the Albuquerque fee rate should apply, rather the rate in Washington, D.C., the actual location of her counsel. Complainant argues that the Agency did not show that engaging out-of-town counsel was unreasonable. Complainant states that she unsuccessfully attempted to retain counsel having adequate expertise in Albuquerque. Moreover, Complainant argues that her retention of out-of-town counsel was reasonable. Complainant notes that while the Agency presented evidence of attorneys practicing in the Albuquerque area who specialize generally in employment law, it did not provide information about success rates. Complainant argues that engaging a highly specialized firm with a high success rate is not unreasonable. Regarding the reasonable rate for her attorney's service, based on Washington, D.C., Complainant avers that the proper analysis is to use the "Laffey Matrix" formula, noting that this is how the hourly rate in her attorney's petition was calculated.

Complainant also challenges the AJ's across-the-board reduction of the attorney fee. Specifically, Complainant argues that all of her claims derived from a "common core of facts" and "related legal theories," and that all of the incidents were so interrelated that there would be no practical way to segregate counsel's time. Complainant argues that the AJ acknowledged this, and yet reduced the award arbitrarily, using a 25% reduction across-the-board.

In terms of billing excesses, Complainant agrees that the following fees should be deducted: .9 hours of work on Complainant's Workers Compensation claim; .6 hours spent on Mary 30 and 31, 2007, on a new claim; 6.5 improperly billed hours for travel on August 23, 2007, and time identified by the Agency as clerical in nature, with the exception of time spent preparing fee summaries and statements. Complainant asserts that this deduction totals approximately $4,451.00. In noting the passage of time since the litigation occurred, and the increase of her attorney's hourly rate since that time, which was $485.00 as of July 1, 2010, the proper amount for attorney fees in this case is $222,742.27.

Regarding litigation fees, Complainant argues that the AJ erred in denying charges of $1,802.57 for computer-based research, citing to several Commission and court cases where these fees were awarded. Complainant admonishes the Commission that we have been remiss in not making a clear ruling on the compensability of costs for computer-based research, and urges us to now do so, in her favor.

Agency's Response to Complainant's Cross Appeal
The Agency disputes Complainant's claims for additional periods of back pay. The Agency contends that they are not a consequence of the incidents found to be discriminatory. The Agency also argues that Complainant's use of leave under the Family Medical and Leave Act (FMLA) from July 9, 2007 to September 12, 2007, should be discounted as the Agency had reassigned her to another facility, but she declined, using the FMLA leave instead. [FN1]

In clarifying what time periods Complainant is owed back pay, the Agency acknowledges that she was denied work opportunities during December 2005 and January 2006. However, the Agency disputes the back pay claim from September 2004 to January 2005. The Agency argues that the evidence does not reflect that the incidents found discriminatory by the AJ occurred during this time period. Moreover, the Agency notes that a settlement of Complainant's union grievance retroactively promoted her to full time status, with back pay based on forty-hour weeks, so that she has no additional entitlement for this time period.

The Agency also argues that the AJ properly denied a "gross up" of the award to compensate for the additional income tax liability generated by the award. The Agency refutes notes that the Commission only awards this as a remedy when there is a very significant back pay award.

Regarding non-pecuniary compensatory damages, the Agency repeats its arguments that the AJ Award must be discounted due to contributing factors unrelated to the Agency's discriminatory conduct. The Agency also repeats arguments that much of Complainant's anguish was related to enormous debut taken to hire her attorney, and notes that her income loss associated with the Agency salary was approximately $10,000.00. Regarding emotional distress associated with the claimed inability to treat her dog and the resulting death, the Agency argues that at that time, Complainant worked full time with the Agency, and had recently received approximately $11,000.00 under a union settlement agreement.

The Agency also rejects the claim that the compensatory damages award should be adjusted to reflect the current dollar value, and rejects the claim that Complainant is entitled to a separate award for damage to her reputation. In fact, the Agency argues that the harm from the email was speculative, as Complainant presented no evidence showing how the email caused her harm in her Agency career, or otherwise.

The Agency also argues that many of the cases Complainant cited in support of the claim for a substantially increased award of non-pecuniary damages are not comparable to her case. The Agency sets forth a table of sixteen Commission cases, with much smaller awards, arguing that these cases are comparable to Complainant's case, and that she is entitled to no more than $30,000.00 in non-pecuniary compensatory damages.

The Agency reiterates that the AJ did not support the award amount for future medical care. The Agency notes that Complainant does not dispute this on appeal. The Agency also rejects Complainant's claim for entitlement to restore leave taken to attend therapy appointments, and argues that future medical expenses should be reduced by fifty percent.

Regarding the hourly rate of Complainant's counsel, the Agency argues that Complainant has not shown AJ error in finding that the use of rates in Albuquerque is proper and reasonable, given evidence of competent counsel in the local area. The Agency notes that Albuquerque is a fairly large metropolitan area, as opposed to a rural area where attorneys with expertise in federal employment discrimination claims might not be available. The Agency also notes that it provided the testimony of a local Albuquerque attorney who identified numerous attorneys capable and available to handle Complainant's case. In this regard, the Agency further notes that legal directories and the internet reflect many attorneys in the Albuquerque area capable of handling this type of case.

As in its initial appeal brief, the Agency continues to argue that the excessive hours were billed for attorney's fees. The Agency argues that this case was overstaffed with nine attorneys and four paralegals claiming billing hours. The Agency asserts that the fees overall should be reduced by 25% to factor for this excess in calculating the lodestar. The Agency also argues that the lodestar should then be cut across-the-board by 45% to reflect Complainant's partial success as the prevailing party.

Regarding legal costs, the Agency asserts arguments already raised previously.

Regarding the claim that the AJ erred in not assigning Complainant to a post of her choice, the Agency notes that because Complainant is already working at a location away from the discriminating manager, reassignment of either Complainant or the manager is unnecessary. Also, the Agency points out the difficulties of carrying this out under the Collective Bargaining Agreement.

Finally, the Agency reiterates that a public apology is improper, and that the Notice should only be placed at the facility where the discrimination occurred.

ANALYSIS AND FINDINGS

AJ's Award of Back Pay. Restoration of Leave and Other Benefits
When discrimination is found, an agency must provide a complainant with an equitable remedy that constitutes full, make-whole relief to restore him or her as nearly as possible to the position he or she would have occupied absent the discrimination. See, e.g., Franks v. Bowman Transportation Co., 424 U.S. 747, 764 (1976). We recognize that precise measurement cannot always be used to reduce the wrong inflicted; nonetheless, the burden of limiting the remedy rests with the agency. See Davis v. U.S. Postal Service, EEOC Petition No. 04900010 (November 29, 1990).

Basically, the parties here request clarification of this aspect: of the award, in order to identify the applicable time period. As noted above, the AJ found liability regarding Complaints 1 and 3. The AJ framed Complaint 1 as concerning incidents covering September 2004 through January 2005. Regarding Complaint 3, the AJ found liability for retaliatory harassment based on incidents in December 2005, and January 2006 to May 2006. The AJ ordered relief for the period of January 2005 and May 2006.

Regarding Complaint 1, the AJ noted that Complainant identified a "series of acts" taken by her supervisor, which precluded her from taking leave and limited her working hours, beginning in the fall of 2004. The AJ then found that the Agency's denial of Complainant's request for a reasonable accommodation for her knee injury was also retaliatory. The record reflects that Complainant filed an EEC) complaint on June 1, 2004, and that her supervisor was aware of this as of June 8, 2004. Therefore, we find that the Agency's liability for retaliatory harassment in Complaint 1 concerns all incidents identified by Complainant in her formal complaint, which the Agency accepted for investigation by letter dated March 11, 2005, commencing in September 2004 through January 27, 2005.

Regarding Complaint 3, the AJ found Complainant alleged retaliatory harassment in December 2005 and from January 2006 to May 2006. The AJ order relief for the period of January 2005 and May 2006. However, given that the AJ found that the Agency retaliated against Complainant as to her "terms or conditions" of employment in apparent reference to all incidents identified in Complaint 3, we find that the AJ should have ordered remedial relief as to those incidents, which occurred during the time period of December 2005 to May 2006, with interest and benefits.

In conclusion, we MODIFY the time period for which Complainant is entitled to back pay for lost work time, associated with the incidents raised in Complaints 1 and 3, as identified here, as September 2004 through January 27, 2005 (Complaint 1), and from December 2005 to May 2006 (Complaint 3).

Moreover, Complainant's relief should also include restoration of any leave she used because of the Agency's discriminatory conduct, during the above-referenced time frames, to include any sick leave to attend therapy appointments, to the extent that it can be documented.

Complainant argues that she is also entitled to a payment to cover additional taxes associated with the back pay award. The Commission has held that, under both legal and equitable theories, an award to cover additional tax liability from a lump sum payment of back pay is available to complainants. Van Hoose v. Department of the Navy, EEOC Appeal Nos. 01982628 and 01990455 (August 22, 2001); Goetze v. Department of the Navy, EEOC Appeal No. 01991530 (August 22, 2001); Holler v. Department of the Navy, EEOC Appeal No. 01982627 and 01990407 (August 22, 2001). In the case of a lump sum back pay award, complainants may be compensated for the extra tax required to be paid due to receipt of a lump sum award, as opposed to the amount they would have to pay if they had received the pay over a period of time. It is the receipt of the pay in one lump sum that causes extra tax liability, not the back pay award itself. Notwithstanding Agency arguments to the contrary, we find that Complainant is entitled to a tax offset payment for the tax year in which she receives the lump sum payment for back pay.

The AJ's Order of Relief is MODIFIED accordingly.

AJ's Award of Non-Pecuniary Compensatory Damages
Pursuant to Section 102(h) of the Civil Rights Act of 1991, a complainant who establishes unlawful intentional discrimination under either Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., or Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., may receive compensatory damages for past and future pecuniary losses (i.e., out-of-pocket expenses, and non-pecuniary losses (i.e., pain and suffering, mental anguish), as part of this "make whole" relief. 42 U.S.C. § 1981a(b)(3). In West v. Gibson, 527 U.S. 212 (1999), the Supreme Court held that Congress afforded the Commission the authority to award compensatory damages in the administrative process.

To receive an award of compensatory damages, a complainant must demonstrate harm due to 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 reconsideration 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. 915.002 (July 14, 1992), at 11-12, 14.

Because there is no precise formula to calculate non-pecuniary damage, AJs are afforded broad discretion in determining such damage awards. An. award of non-pecuniary damages should not be "monstrously excessive" standing alone, should not be the product of passion or prejudice, and should be consistent with the amount in similar cases. See Ward-Jenkins v. Department of the Interior, EEOC Appeal No. 01961483 (March 4, 1999) (citing Cygnar v. City of Chicago, 865 F.2d 848 (7th Cir 1989)).

Here, the AJ found that Complainant experienced significant emotional distress, depression, and an impact upon relationships, and loss of enjoyment of life, all suffered over a lengthy time period. The AJ determined that Complainant suffered comparable to a $95,000.00 award provided in a similar case, and so awarded Complainant $100,000.00.

Based on our review, we find that the record shows that Complainant suffered major depression, as well as PTSD. The expert psychologist provided testimony that the PTSD was triggered by fear of personal harm in the workplace, which the evidence shows was caused by the Agency's acts of retaliatory harassment, as specified in Complaint 3. The expert further noted that workplace situations typically do not trigger PTSD, which suggests that the harassment Complainant experienced caused a severe emotional reaction. Testimony at the damages hearing from this expert, as well as from Complainant's treating therapist, her friends, and Complainant herself, consistently confirmed that Complainant underwent a complete transformation from an outgoing happy person, to one riddled by anxiety, depression, and self-loathing. Complainant testified that she almost committed suicide.

The Agency does not dispute the severity' of the emotional distress. However, the Agency argues that much of it was not caused by discriminatory conduct. The Agency argues that most of the emotional distress was caused by a dire financial situation, which did not result from lost income due to the discriminatory conduct, but rather to Complainant's decision to hire an expensive attorney. The Agency also argues that the AJ did not assess witness testimony on the severity of Complainant's emotional distress; and that the AJ failed to recognize that the witnesses based their assessments on the cumulative emotional effect from both discriminatory and non-discriminatory workplace conduct, as well as on the above described non-workplace incidents. However, we find that the testimony of the expert witness, who diagnosed PTSD, and pinpointed its trigger to the Agency's discriminatory conduct, is probative in demonstrating that most of the emotional suffering was due to unlawful retaliation.

The Agency additionally argues that the death of Complainant's dog, and the pain and incapacity associated with a knee injury, contributed significantly to Complainant's emotional distress. Again, we agree that record evidence supports this argument. Therefore, to the extent that it can be assessed, the emotional harm from these two factors is not compensable.

Complainant argues for a separate award of $50,000.00 for loss of reputation associated with the slanderous email. However, the Agency argues that Complainant showed no actual harm to her reputation, and that Complainant's argument is mere speculation. We agree that a separate award is not warranted. Nonetheless, Complainant showed that she: suffered extreme emotion distress upon learning of the content of the email and to whom it was sent. She reasonably felt that she had been maligned, and that her reputation and career were ruined. Complainant is entitled to non-pecuniary compensatory damages for this emotional harm.

Also, Complainant argues that when comparing damage award in previous cases, to insure that the award in the instant matter is indeed comparable, the award must be adjusted upward, to factor for the value of the present dollar. However, we discern no clear legal precedent to allow for this upward adjustment.

After careful review, we find that all of Complainant's emotional distress cannot be attributed to the Agency's discriminatory conduct. Nevertheless, the more severe aspects certain can. On the other hand, work-related incidents found not to be discriminatory, or which occurred outside the time frame at issue, must be excluded from the award. In review the record, such incidents do not appear to have significantly contributed to the emotional distress. By contrast, non-work related factors, such as Complainant's debt, the death of her dog, and pain and incapacity from a knee injury played a significant role.

In reviewing the record, especially the testimony provided at the damages hearing, we find that there is substantial evidence in the record to support the AJ's balancing of the various factors discussed above to set the amount of non-pecuniary compensatory damages at $100,000. In so finding, we note that non-pecuniary compensatory damages are designed to remedy a harm, and not to punish the Agency for its discriminatory actions. Furthermore, we find that this award is not "monstrously excessive" standing alone is not the product of passion or prejudice, and is consistent with the amount awarded in similar cases. See Conrad v. Department of Justice, EEOC Appeal No. 0120090690 (April 9, 2010); Lucas v. Department of Veterans Affairs, EEOC Appeal No. 0720070051 (January 3, 2008).

Accordingly, for the reasons set forth above, we AFFIRM the AJ's award of non-pecuniary compensatory damages in the amount of $100,000.00.

AJ's Award of Pecuniary Compensatory Damages
As set forth above, on appeal, the Agency argues that the AJ's award of $29,000.00 for past and future medical expenses is excessive. The Agency performed its own calculations, based on three years of future, once-a-week psychiatric treatment, at the therapist's current rate, and including mileage costs. The Agency arrived at the amount of $15,825.00. Added to verified past medical expenses of $8,143.31, the Agency claims that the total award would be $23,968.00. We agree with the Agency's reasoning. However, we disagree that this total should be reduced by 50%, as also argued by the Agency.

Therefore, we MODIFY the AJ's award of pecuniary compensatory damages from $29,000.00 to $23,968.00.

AJ's Award of Equitable Remedies
On appeal, Complainant argues that the AJ improperly failed to order the Agency to reassign Complainant to a location of her choice, away from the discriminating managers. The Agency disagrees, noting that Complainant is already working at a facility away from these managers, and has been doing so for some time. In considering this matter, we note that the purpose of this remedy is to remove Complainant from the hostile work environment created by the discriminating managers. This is most fairly accomplished by reassigning managers. Alternatively, when agreeable to a complainant, the complainant can be reassigned.

Here, the record reflects that Complainant no longer works under the supervision of any of the identified discriminating managers, so the purpose of this remedy has already been accomplished. However, because of the circumstances of this case, we also find that the Agency should be ordered to ensure that Complainant never works under the supervision of these individuals, which we will include in our Order, at the end of this decision.

Regarding a public apology Complainant seeks, we note that a public apology is not one of the forms of relief provided for in our regulations. See 29 C.F.R. § 1614.501; Spivey v. U.S. Postal Service, EEOC Appeal No. 01961251 (March 24, 1998). Therefore, we find that the AJ properly excluded this in the order of relief.

Finally, regarding the AJ's Order to post the "Notice" at all of the Agency facilities in the Albuquerque area, we determine that the Agency correctly asserts that 29 C.F.R. § 1614.501(a)(1) usually requires that the Notice only be posted at "the affected facility." However, on a case-by-case basis, there may be justification for ordering posting on a wider basis. However, in this case, the AJ has not explained her reason for ordering the wider posting. Therefore, we MODIFY the AJ's Order so that the Notice need only be posted at the Agency's Sandia Park Post Office facility in Sandia Park, New Mexico.

AJ's Award of Attorney's Fees and Costs
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. Bernard v. Department of Veterans Affairs, EEOC Appeal No. 01966861 (July 17, 1998). Attorney's fees are computed by determining the lodestar, i.e., the number of hours reasonably expended multiplied by a reasonable hourly rate. 29 C.F.R. § 1614.501(e)(2)(ii)(B); Equal Employment Opportunity Commission Management Directive (MD) 110 at 11-5 (citing Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). All hours reasonably spent in processing the complaint are compensable, and the number of hours should not include excessive, redundant or otherwise unnecessary hours. MD 110 at 11-5 (citing Hensley, 461 U.S. at 434; and Bernard, EEOC Appeal No. 01966861). A reasonable hourly rate is based on prevailing market rates in the relevant community for attorneys of similar experience in similar cases. MD-110 at 11-6 (citing Cooley v. Department of Veterans Affairs, EEOC Request No. 05960748 (July 30, 1998)). In determining the degree of success, the Commission will consider all relief obtained in light of a complainant's goals, and, if a complainant achieved only limited success, s/he should recover fees that are reasonable in relation to the results obtained. Hensley, 461 U.S. at 434. While a reasonable fee should not be determined simply by mathematical formula, hours spent on unsuccessful claims should be excluded from the amount of a reasonable fee. Id.

Determination of Reasonable Hourly Rate
The AJ reduced Complainant's petition for attorney fees from $191,993.93 to $146,000.00. The AJ found that the Agency persuasively argued that many attorneys practicing in the Albuquerque area had the requisite legal expertise to provide counsel to Complainant. Complainant asserts that she searched for an attorney in the Albuquerque area to represent her; but that she only found one attorney; and she was unconvinced that he would do a good job. After recommendations from acquaintances knowledgeable about the EEO process, she retained a law firm based in Washington, D.C., because of the firm's successful record in representing federal employees in EEO complaints.

If a party does not find counsel readily available in that locality with whatever degree of skill may reasonably be required, it is reasonable that the party go elsewhere to find an attorney. Southerland v. U.S. Postal Service, EEOC Appeal No. 01A05403 (October 16, 2002) (citation omitted). On the other hand, if a higher-priced, out-of-town attorney renders services which local attorneys could do as well, and there is no other reason to have them performed by the out-of-town attorney, then it may be appropriate to allow only the hourly rate which local attorneys charged for the same service. Id. The burden is on the Agency to show that Complainant's decision to retain an out-of-town attorney was unreasonable. Id.

Here, the Agency did provide evidence of local attorney who could have arguably provided adequate representation to Complainant. However, there is no evidence that their expertise remotely approximated that of Complainant's counsel. We have considered the Agency argument that the issues in this case were not so complex as to require a highly experienced and specialized attorney. Complainant did indeed first search for an attorney locally, but could only find one attorney who could represent her, whom she did not have confidence in. At that point, she decided to use an out-of-town firm known for its successful representation of federal attorneys in the EEO process. We therefore determine that the Agency evidence of local attorneys having limited pertinent experience did not demonstrate that Complainant acted unreasonably when retaining her counsel. Accordingly, it was appropriate in this case to use the Washington, D.C. hourly rate ("Laffey Matrix") rather than the Albuquerque hourly rate.

However, despite stating that the hourly rate in Albuquerque should be used, the AJ, without elaboration, appears to have used the Washington, D.C. "Laffey Matrix" to calculate attorney fees. However, the AJ reduced Complainant's attorney fee petition from $193,993.93 to $146,000.000. The AJ found some of the billing clerical in nature, and noted "slight" excesses in the billing. The AJ also found that all of Complainant's claims derived from a common core of facts, and that the evidence on the claims where she did not prevail were nevertheless material to the successful claims. Nevertheless, the AJ found that because Complainant was only partially successful, the attorney fees should be reduced across-the-board by 25%.

We disagree. Complainant's claim was one of harassment. Complainant alleged two bases: disability and harassment. Complainant did not prevail in demonstrating harassment on the basis of disability. However, she did prove harassment on the basis of reprisal. Her remedies are the same, irrespective of whether she proved harassment on one, or on both, bases. Moreover, because the harassment is based on the same incidents regarding both bases, such a reduction for partial success is not warranted. We conclude that the AJ erred when she made this finding, but nevertheless reduced the fees based on Complainant's "partial success."

Reasonable Hours Expended
The Agency argues that the AJ failed to properly discount the fee, by taking into account the amount of excessive hours that were billed. The Agency avers that it identified multiple instances of unreasonable amounts of time spent an a task, insufficient task descriptions, repetitive work, clerical work, excessive telephone calls, work on matters unrelated to the instant litigation, and improperly billed travel expenses.

Regarding billing excess, Complainant agrees that the following fees should be deducted: .9 hours of work on Complainant's Workers Compensation claim; .6 hours spent on Mary 30 and 31, 2007, on a new claim; 6.5 improperly billed hours for travel on August 23, 2007, and time identified by the Agency as clerical in nature, with the exception of time spent preparing fee summaries and statements. Complainant asserts that this deduction totals approximately $4,451.00.

The Agency argues that excessive hours were billed. The Agency notes that the incidents covered a span of years, but that the issue and law were not complex. The Agency argues that the case was overstaffed with nine attorneys and four paralegals claiming billing hours. The Agency asserts that the fees overall should be reduced by 25% to factor for this excess in calculating the lodestar.

The Commission has ruled that when reviewing fee petitions which contain many excessive, redundant, unnecessary or inadequately documented expenditures of time, in lieu of engaging in a line-by-line analysis of each charge claimed, the Commission will calculate the number of hours compensable by applying an across-the-board reduction to the number of hours requested. See Bernard v. Department of Veterans Affairs, EEOC Appeal No. 01966861 (July 17, 1998).

We agree with the Agency that Complainant's attorney fee petition contains unnecessary layers of review and over all, simply too much time spent by too many people. The billing statement indicates that this case was worked on by nine attorneys and four paralegals. Therefore, we find that a 15% across-the-board reduction of attorney fees is warranted.

However, as noted by Complainant on appeal, the firm's rate increased by $10.00 per hour as of July 2010, making the fee $222,743.27. The Commission has previously determined that the proper customary hourly rate is the reasonable hourly rate in effect at the time of the award, not at the time services are provided. See Mareno v. Department of Veterans Affairs, EEOC Appeal No. 01943104 (February 14, 1996). Therefore, reducing $222,743.27 by 15% (for billing excess), or $33,411.49, we find that the proper award for attorney fees is $189,331.78.

Costs
The Commission has held that reasonable costs incurred by a prevailing party in the course of litigation of an EEO complaint are compensable. See EEOC MD-110, at p. 11-4 § V(A) Hafiz v. Department of Defense, EEOC Petition No. 04960021 (July 11, 1997). Costs may include such items as mileage, postage, telephone calls, photocopying, and any other reasonable expenses incurred in connection with litigating the EEO complaint. Williams v. Department of Veterans Affairs, EEOC Petition No. 04A40047 (June 30, 2005). It is a complainant's burden to prove that such costs were incurred by providing documentation, such as bills for copying, or receipts for mailings. Id.

In assessing costs, the AJ determined that the amount claimed by Complainant, $28,141.34, should be reduced by $100.00 for file administration, as well as charges relating to the law firm's Westlaw account. Regarding the Westlaw account, the AJ found that this cost is part of the firm's overhead and was therefore already captured by the hourly rate. Therefore, the AJ awarded $26,188.77 in costs.

On appeal, Complainant argues against the exclusion of $1,802.57 for Westlaw costs, citing the case law where it was approved. However, the Agency takes issue with numerous other costs requested by Complainant, noting instance of no documentation, or inadequate documentation, provided. Specifically, the Agency contends that there is no documentation of record to verify the following: $23.32 in telephone charges; $63.87 in postage costs:. $682.73 in copying costs; $788.00 in faxing costs; $104.80 in mileage costs; and $93.00 in parking costs. The Agency further argues that inadequate documentation was provided for $758.30 in Federal Express charges, such that it should be reduced by 75%, to $189.58; $189.11 for meals, which should be reduced by 50% to $90.56; $2,231.07 for lodging, which should be reduced by 50% to $1,115.54; and $4,842.21 in travel expenses should be reduced by 50% to $2,421.11.

First, in addressing the Westlaw issue, the AJ determined that costs associated with maintaining an online legal research service is analogous to maintaining an updated legal library. We find that this comparison is appropriate. Therefore, we find that the cost associated with maintaining an online legal research service is properly characterized as "overhead."

Consequently, because there is no dispute that the "overhead" is; already captured by the attorney's hourly rate, the costs of online legal research services is not separately reimbursable. The Commission acknowledges that there have been decisions awarding this cost as part of make-whole relief. We note, however, that these decisions were issued some years ago, when that use of online research was not nearly as commonplace as it is today, such that it could not be properly characterized as overhead. Therefore, we find that the AJ properly excluded this cost.

Second, we note that on appeal, Complainant does not dispute the Agency's itemized list of costs which were not properly documented. On the other hand, the AJ specifically found that Complainant provided sufficient documentation to support costs and expenses. In our review, we agree with the Agency that those costs which are completely undocumented should be excluded. However, the AJ's assessment that that documentation for the remaining charges was satisfactory, including those identified by the Agency as inadequately documented. Therefore, we do not challenge that assessment. We note that reductions suggested by the Agency appear speculative, and the applicable legal standard here is that if the documentation is inadequate, payment of costs must be denied, and not reduced. The AJ properly exercised discretion in determining that the documentation at issue was adequate.

Therefore, for the above stated reasons, we MODIFY the AJ's award of costs to exclude those which are not supported by adequate documentation, i.e., $23.32 in telephone charges; $63.87 in postage costs; $582.73 in copying costs; $788.00 in faxing costs; $104.80 in mileage costs; and $93.00 in parking costs, by a total of $1,655.72. Accordingly, we find that Complainant is entitled to $24,533.05 in costs.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we MODIFY the AJ's award of remedies and REMAND this matter to the Agency for further processing in accordance with the ORDER below.

ORDER

The Agency is ORDERED to take the following remedial action:

Restoration of Back Pay
Complainant is entitled to back pay, interest, and benefits for lost work associated with the incidents raised in Complaint 1, for the time period of September 2004 through January 27, 2005; and from December 2005 to May 2006 regarding Complaint 3.

Complainant is also entitled to a tax offset payment for the tax year in which she receives the lump sum payment for back pay.

The Agency shall determine the appropriate amount of back pay, with interest, and other benefits due Complainant, pursuant to 29 C.F.R. § 1614.501, no later than sixty (60) calendar days after the date that this decision becomes final. Complainant shall cooperate in Agency efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of pack pay and/or benefits, the Agency shall issue a check to Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. Complainant may petition for enforcement or clarification of the amount in dispute. The petition for enforcement must be filed with the Compliance Officer, at the address referred in the statement entitled "Implementation of the Commission's Decision."

The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation of the Agency's back pay calculation, and other benefits due, including evidence that the corrective action has been implemented.

Restoration of Leave
Within sixty (60) calendar days of the date that this decision becomes final, the Agency shall calculate and restore any leave taken by Complainant clue to its discriminatory conduct, including any sick leave taken to attend therapy appointments.

Compensatory Damages
Within thirty (30) calendar days of the date that this decision becomes final, the Agency shall pay to Complainant $100,000.00 as an award of non-pecuniary compensatory damages; and $23,968.00 as an award of pecuniary damages.

Attorney's Fees
Within thirty (30) calendar days of the date that this decision becomes final, the Agency shall pay to Complainant $189,331.78. Also, because Complainant prevailed fully or partially on some of the matters raised on appeal, she is also entitled to an additional award of attorney fees as the prevailing party in this appeal, as more fully specified in the "Attorney Fees" provision below.

Litigation Costs
Within thirty (30) calendar days of the date that this decision becomes final, the Agency shall pay Complainant $24,533.05.

Equitable Relief
The Agency is ordered to take whatever measures are necessary to insure that Complainant will not work under the supervision of the named discriminating officials for the remainder of her career with the Agency.

Within ninety (90) calendar days of the date this; decision becomes final, the Agency shall provide eight hours of EEO training explaining the prohibition against unlawful reprisal for engaging in prior protected EEO activity. This training shall be provided to all management officials involved in the incidents raised in Complaints 1 and 3, still employed by the Agency, as well as the named co-worker who harassed Complainant.

Posting of the Notice
Within thirty (30) calendar days of the date this decision becomes final, the Agency must post the attached notice regarding this discrimination finding at its Sandia Park, New Mexico facility, as more fully specified in the "Posting Order" provision below.

POSTING ORDER (G0610)

The agency is ordered to post at its Sandia Park Post Office facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted by the Agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period.

ATTORNEY'S FEES (H0610)

If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(hi)), 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 (T0610)

This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z0610)

If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").

FOR THE COMMISSION:

Carlton M. Hadden
Director
Office of Federal Operations

[FN1]. This claim concerns a time period beyond the scope of the instant complaint, and we do not further address it herein.