U.S. Equal Employment Opportunity Commission (E.E.O.C.) Office of Federal Operations * * * SANORA S.,1 COMPLAINANT, v. MEGAN J. BRENNAN, POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE, AGENCY. Appeal Nos. 0120133235 , 0120140921 Agency No. 6H-000-0001-08 Hearing No. 460-2008-0179X December 11, 2015 DECISION On August 20, 2013, Complainant appealed the Agency's August 5, 2013 final decision (FAD 1) awarding compensatory damages. On September 27, 2013, Complainant filed an appeal from the Agency's August 30, 2013 FAD (FAD 2) awarding attorney's fees and costs to one of two law firms that had represented her (hereinafter referred to as "Law Firm #1" and "Law Firm # 2"). The Commission deems both appeals timely and consolidates them for de novo review pursuant to 29 C.F.R. § 1614.405(a) and 29 C.F.R. § 1614.606. For the following reasons, the Commission MODIFIES the remedies awarded in the two FADs. BACKGROUND Complainant, an Inspector with the Agency's Investigative Requirements and Solutions Intelligence Group, who resided in Houston, Texas, filed an EEO complaint in which she alleged that her Group Supervisor (S1), who was based in Arlington, Virginia, harassed and discriminated against her on the bases of sex, disability, and in reprisal for previous EEO activity. She identified ten incidents in support of her claim: 1. On October 27, 2007, S1 had asked Complainant to resign from the Agency's Career Leadership Program. 2. On October 26, 2007, Complainant complained to S1 that she had been assigned clerical work rather than level 14 work and S1 replied that Complainant could not perform level 14 work because of her medical restrictions. 3. On October 25, 2007, S1 denied her request for approval to engage in outside employment selling real estate. 4. From October 2 to November 1, 2007, and after November 15, 2007, Complainant was assigned clerical work. 5. On November 5, 2007, S1 sent Complainant an electronic mail message chastising her for working flextime. 6. On November 14, 2007, S1 became upset with Complainant for giving medical information to the Agency's Area Medical Officer rather than to her. 7. On November 15, 2007, S1 denied her request to telework on November 16 and 17, 2007, after sending her a chastising email. 8. On November 15, 2007, S1 called Complainant and told her that she had overstepped her bounds on a project. 9. On January 15, 2008, S1 placed her on administrative leave and had her escorted off the premises in front of her colleagues pending a fitness-for-duty examination that never occurred. 10. On April 4, 2008, S1 placed Complainant on mandatory travel to Washington, DC. In EEOC Request No. 0520120553 (January 30, 2013), the Commission found reprisal in connection with incidents (3), (7), and (9) only. Supplemental Investigative Report for Compensatory Damages (SIR) 66-69, 86-88, 118, 121-22. The order for relief in that decision directed the Agency, inter alia, to conduct a supplemental investigation on Complainant's entitlement to compensatory damages, award Complainant appropriate back pay with interest and other benefits due her, and pay attorneys' fees and costs to Law Firm # 1 and Law Firm # 2. In accordance with that order, the Agency issued three final decisions: FAD 1 awarding compensatory damages of $40,855.50; FAD 2 awarding attorney's fees and costs of $15,415 to Law Firm # 2; and a third FAD awarding attorney's fees and costs of $11,252.43 to Law Firm # 1. Complainant appealed all three FADs separately to the Commission. In Complainant v. United States Postal Service, EEOC Appeal No. 0120140049 (March 25, 2013), the Commission issued a decision finding that Law Firm # 1 was entitled to attorney's fees and costs in the amount of $17,940.83 for 94.8 hours of substantive legal work. Law Firm # 1 had requested $43,821.93 in attorney's fees and costs. While the Commission determined that Law Firm # 1 was entitled to the prevailing market hourly rates for attorneys practicing in Washington, DC, the Commission affirmed the Agency's decision to reduce the award by 60% because Complainant had only prevailed in three out of ten incidents and had not prevailed on her discriminatory harassment claim. The other two FADs are now before us for decision. Accordingly, we will address Complainant's claims for compensatory damages, equitable relief, and attorney's fees and costs for Law Firm # 2. COMPENSATORY DAMAGES Compensatory damages are awarded to compensate a complaining party for losses or suffering inflicted due to discriminatory acts or conduct. Enforcement Guidance: Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991 EEOC Notice No. 915.002, at 5 (July 14, 1992) (hereinafter Enforcement Guidance). Compensatory damages include damages for past pecuniary loss (out-of-pocket expenses), future pecuniary loss (likely future out-of-pocket expenses), and nonpecuniary loss (emotional harm). See Id. In FAD 1, the Agency allocated the $40,855.50 award as follows: $18,355.50 for pecuniary losses and $22,500.00 for nonpecuniary losses. FAD 1, p. 21. The award for pecuniary losses consisted entirely of compensation for lost income that Complainant would have earned were it not for her supervisor's retaliatory refusal to timely approve her request to engage in an outside business selling real estate in 2008 and 2009. FAD 1, pp. 11-14. On appeal, Complainant contends that she is entitled to an award of $517,329.31 that includes: reimbursement for lost real estate earnings of $361,342.64; reimbursement for the cost of a report prepared by the Psychologist, who had most recently treated her, in the amount of $9,010; the cost of future treatment by the Psychologist in the amount of $10,400; and nonpecuniary losses for pain and suffering in the amount of $116,666.67. Complainant's Appeal Brief (CAB), pp. 77-78. Past Pecuniary Losses We begin with Complainant's claim for past pecuniary losses, which are out-of-pocket expenses that are incurred as a result of the employer's unlawful action and typically include reimbursement for medical expenses. Enforcement Guidance, supra. The only healthcare expense for which Complainant seeks reimbursement for out-of-pocket losses is the cost of the report prepared by her treating Psychologist, which was billed out at $9,010.00. SIR 75, 94, 192. The Psychologist had seen Complainant as a patient between December 2008 and February 2010. SIR 124, 205-12. During that time frame, she had diagnosed Complainant as suffering from Post-Traumatic Stress Disorder (PTSD) and had made detailed clinical observations. SIR 124-30. The bulk of the compensable time in the Psychologist's billing statement, 49 hours, is devoted to writing the report, which the Psychologist had done during 2013, more than three years after Complainant's final therapeutic visit. We agree with the Agency that the clinical information concerning Complainant's condition that was summarized in the report could have been presented without having to do so extensive a write-up. Further, we note that the first page of the report identifies the date that the Psychologist conducted an examination of Complainant as March 20, 2013, nearly two months after the Commission ordered the Agency to conduct the supplemental investigation on damages. SIR 116. The Psychologist's billing statement mentions conversations with Complainant's attorney. SIR 142. In Complainant's appeal brief, Complainant's counsel characterized the document as an expert's report, and emphasized that it was "central to a proper determination of damages" and that it "brings new information and analysis to the compensatory damages investigation." CAB 41-47. As we previously noted, however, the report merely summarizes the clinical information on Complainant that the Psychologist had gathered three years earlier. While Complainant may have been the Psychologist's patient at one time, that relationship ended in February 2010. The language in the Psychologist's billing statement clearly reflects that in 2013, the Psychologist was retained by Complainant and her counsel as an expert witness in the supplemental investigation for damages. This takes the report out of the realm of out-of-pocket medical expenses and puts it squarely within the realm of costs incidental to legal representation. Consequently, rather than treat this item as an element of past pecuniary damages, we will address it in our discussion of attorney's fees below, under the subheading, "Costs." We next consider Complainant's claim for lost real estate earnings in the amount of $361,342.64, which Complainant also characterizes as past pecuniary damages. The Agency based its award of $18,355,50 upon its determination that, had Complainant not been subjected to discrimination, she would likely have earned this amount over and above her actual earnings from real estate sales during 2008 and 2009. The Agency arrived at this figure by taking the difference between what she earned in 2006, when she achieved her highest sales commissions, and what she actually earned in 2008 and 2009, when her activity had declined as a result of her supervisor's retaliatory delay in approving her request to engage in outside employment. FAD 1, pp. 11-14; SIR 85, 104. Complainant argues that the Agency underestimated her lost income by discounting her comparators and not including sales activity from July 2010 onward. CAB, pp. 56-67. However, the individuals to whom Complainant sought to compare herself were full-time real estate professionals, whereas she was only working in the business part time on evenings and weekends. She failed to adequately explain why the earnings of two full-time brokers would have provided a better estimate of what her income would have been than her own earnings. Her claim of entitlement to over $360,000 in lost income is speculative at best. We therefore affirm the Agency's award of $18,255.50, representing past pecuniary damages for lost income from Complainant's outside real estate business. Future Pecuniary Losses Complainant claims future pecuniary damages in the amount of two thirds of $10,400, or $6,933.33, representing the approximate cost of one year of therapy with the Psychologist. CAB, pp. 51-55, 67; SIR 71, 194. Future pecuniary losses are out-of-pocket expenses that are likely to recur after the proceeding ends. See Enforcement Guidance, supra at 6. The Agency disallowed this claim after finding that Complainant's symptoms were under control as of January 2009, and alternatively, that her decisions to see the Psychologist in December 2008 and take leave in May 2009, did not result from the incidents found to be discriminatory. FAD, p. 11. As we previously noted, the Psychologist had seen Complainant as a patient from December 2008 to February 2010. During that time, Complainant had been subjected to ongoing stresses not only from her job, but from having to take care of her aging parents. During or after this interval, her father had passed away, which would likely have caused her further stress. SIR 124. Most significantly, the Psychologist had reported that Complainant had not been taking her medication on a consistent basis and that she had sought no further treatment after her therapy sessions ended in February 2010. SIR 130-31. We therefore agree with the Agency that Complainant has not established the necessary causative link between the condition allegedly requiring her to seek further treatment from the Psychologist and the Agency actions that were found to be retaliatory. See Reed v. Department of Transportation, EEOC Appeal No. 0120080520 (January 21, 2011). Consequently, we affirm the Agency's disallowance of Complainant's claim for $10,400 in future pecuniary losses. Nonpecuniary Losses Finally, we address Complainant's claim for nonpecuniary losses in the amount of $116,666.67. Damages are available for pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, character, or reputation, and other intangible injuries that result from discriminatory conduct. Enforcement Guidance, supra at 7. Awards for emotional harm are warranted only if Complainant establishes a sufficient causal connection between the Agency's illegal actions and her injury. See id. Such awards are limited to the amount necessary to compensate Complainant for actual harm and should take into account the severity of the harm and the length of time Complainant has suffered from the harm. Coopwood v. Department of Transportation, EEOC Appeal No. 0120083127 (May 2, 2012) citing Carpenter v. Department of Agriculture, EEOC Appeal No. 01945672 (July 17, 1995). To establish the existence of intangible injury, Complainant can submit objective evidence, as well as other types of evidence, including: a statement by the complainant, explaining how the discrimination affected the complainant; statements from others, including family members, friends, and health care providers, that address the outward manifestations of the impact of the discrimination on the complainant; documentation of treatment related to the effects of the discrimination. Coopwood, supra citing Carle v. Department of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993). The primary piece of evidence that Complainant submits in support of her claim for nonpecuniary compensatory damages is the report prepared by her treating Psychologist as an expert witness in 2013. According to that report, Complainant first exhibited mild symptoms of anxiety, depression, and moderate insomnia toward the end of a 90-day detail to New York City between November 2004 and February 2005. She perceived that her supervisors did not like her and that she had been blacklisted. SIR 120. From August through October 2006, Complainant sought help from a Psychologist on contract with the Agency's Employee Health Program. On an unspecified date in 2007, Complainant was informed that her job in Houston was going to be abolished and that she and five of her fellow inspectors would be permanently transferred to Washington, DC. In April 2007, S1 became her supervisor. The report noted that after April 2007, Complainant's symptoms of anxiety were linked to panic, depression, increasingly intense headaches, pain in her neck and shoulders, and feelings of being overwhelmed and excessively micromanaged by S1. SIR 120. In July 2007, Complainant saw the contract Psychologist again. According to the report, Complainant's symptoms of panic, insomnia, and sleep deprivation had become so severe that the contract Psychologist had her placed on medical leave between August 1 and September 17, 2007. She returned to work with a travel restriction that was not lifted until November 11, 2007. SIR 120. On October 25, 2007, S1 denied Complainant's request for approval to engage in outside employment which, according to the report, exacerbated her depression, panic attacks, and physical symptoms such as headaches and stomach pains. SIR 120-21. Those symptoms were further exacerbated when, on November 15, 2007, S1 denied her telework for the following day and forced her to use sick leave. Her sleep deprivation had worsened because she began to have consistent and frequent nightmares, up to four or five nights per week. SIR 122. Between August 2007 and January 2008, Complainant was also seen by a Psychiatrist, who had diagnosed her as having major depression with occasional panic attacks and moderate difficulty in occupational functioning. He prescribed the anti-depressant medication "Effexor XR." SIR 120-121. The Psychiatrist had increased her dosage of Effexor from 37.5 milligrams to 150 milligrams by the time he had stopped seeing her in January 2008. But by this time, Complainant had taken herself off the medication due to her concerns about its side-effects. SIR 120-22, 196-202. The report further indicated that although Complainant's symptoms had started to subside by early January 2008, they became aggravated yet again when S1 put Complainant in administrative leave status for three weeks while attempting to schedule a fitness-for-duty examination that ultimately never occurred. SIR 122. Also, as previously noted, in April 2008, S1 had imposed a mandatory travel requirement on Complainant, forcing her to work in Washington DC during the week and return home to Houston on weekends, which also had an exacerbating effect on her depression and PTSD. Between February and September 2008, Complainant saw the contract Psychologist twice a month. In May 2008, Complainant again reported an escalation of hostilities in her workplace and an exacerbation of her symptoms. In December 2008, the contract Psychologist stated that it was medically necessary for Complainant to be referred to a specialist, and accordingly, referred her to the treating Psychologist who eventually prepared the report. SIR 122-23, 217-3. As noted above, the treating Psychologist diagnosed Complainant with PTSD in addition to major depression, and opined that Complainant's symptoms were affected by her work environment. SIR 118-23, 130-31, 203-04, 214-16. She noted that when Complainant first began seeing her in December 2008, her symptoms had escalated to the point where she trusted no one, not even family members, and that she was experiencing the stresses of taking care of her parents as well as her children. As previously noted, Complainant's father passed away while she was seeing the treating Psychologist, which also caused her symptoms to escalate. SIR 124-125. In addition to the treating Psychologist's report, Complainant presented her own affidavit in which she attested to the severity and duration of her symptoms, and added that her relationships with coworkers, friends and family had substantially deteriorated. SIR 70. She acknowledged, however, that she had been experiencing major stresses in her life well before the incidents involving S1 as well as stresses arising from sources other than work. SIR 66-70, 72-74, 76, 80, 85-88. Complainant also presented affidavits from her family members, friends, co-workers and her minister. These individuals attested to the fact that Complainant's relationships had deteriorated during the period in which the discriminatory incidents had occurred, that Complainant had experienced multiple symptoms, including sadness, pessimism, insomnia, nightmares, weight fluctuation, frequent crying, severe headaches, loss of enjoyment of hobbies, and other symptoms, and that Complainant had never made a complete recovery. SIR 144-46, 148, 150-52, 155-60, 162-64, 166-68, 170-73, 175-78. On appeal, Complainant contends that she is entitled to a base award of $175,000, but concedes that the award should be reduced by one third to $116,666.67. See CAB, pp. 39-40. Throughout her appeal brief, Complainant argues that two thirds of the losses she suffered were attributable to S1's retaliatory acts, and consequently, that she is entitled to recover two thirds of any base award of damages and equitable relief. See CAB, pp. 39-40, 49, 67, 77. Complainant identified three causes of the harm she suffered: (1) S1's effective denial of Complainant's request to engage in outside employment, which was found to be discriminatory; (2) flare-ups of Complainant's depression and PTSD and the symptoms associated with those conditions; and (3) S1's requirement that Complainant travel to Washington, DC, which began in April 2008. Complainant concedes that incident (3) was not discriminatory and maintains that because two of the three reasons she suffered harm were based upon the retaliatory acts of S1, she should be entitled to two thirds of any base award of damages and equitable relief. CAB, pp. 39-40. While we agree with Complainant that any award she ultimately receives should be proportional to the harm she suffered, we disagree with the two-thirds proportion she claims entitlement to as well as the manner in which Complainant arrived at that proportion. In cases involving multiple incidents where discrimination is found in some incidents but not on others, any damages award should be based only on those incidents in which discrimination is actually found. See Eason v. Department of the Navy, EEOC Appeal Nos. 0120062715 & 0120062716 (June 6, 2008) (limiting award where the employee prevailed in three of seven incidents and regarding the remaining incidents as independent causes). Because Complainant prevailed in only three of the ten incidents she identified in her original claim, her recovery should be 30% of the base award, not two thirds, as she claimed. Complainant cites a number of our prior decisions in which we have awarded between $130,000 and $150,000 in nonpecuniary damages. In Burton v. Department of the Interior, EEOC Appeal No. 0720050066 (March 6, 2007), we awarded the employee $130,000 in nonpecuniary damages based on a finding that as a result of being subjected to a hostile work environment, the employee suffered anxiety, depression and humiliation, which resulted in permanent diminishment on quality of life and her ability to earn a salary. The employee attested to being withdrawn from friends and family and to contemplating suicide. Her own testimony was augmented by a sworn statement from her husband and from medical records showing that she had been diagnosed with post-traumatic stress disorder. Of the seven incidents she identified in her complaint, she had prevailed on four. In VanDesande v. United States Postal Service, EEOC Appeal No. 07A40037 (September 28, 2004), we awarded $150,000 to an employee who had been subjected to numerous suspensions and terminations. We noted that in cases where we have made substantial awards of nonpecuniary damages, the evidence of record tends to show that the emotional or psychological injuries that resulted from the Agency's actions had permanent or substantially long term effects. In VanDesande, the award was supported by the testimony of the employee, his wife, and brother, as well has his medical providers, who had diagnosed him with and prescribed treatment for major depression, anxiety disorder, and PTSD. We reduced the Administrative Judge's original award from $200,000 down to $150,000 because the employee was able to successfully train as a firefighter and complete his probation for that position. In Coopwood, supra, we again awarded an employee $150,000 after our review of affidavits from various witnesses and medical documentation that the racially charged hostile environment to which the employee was exposed for two and a half years caused her to suffer severe depression, nausea and vomiting in the office, uncontrollable crying, frequent panic attacks, fears for her safety, difficulty concentrating, nightmares, and insomnia. She also suffered significant injury to her professional standing and reputation, weight fluctuation, and stomach problems. Each of these three cases shares a number of features in common with the case now before us. In addition to being supported by extensive testimony and medical documentation, the harm suffered by the employee in each of these prior decisions was found to be either permanent or substantially long term. In the present case, the testimonial and documentary evidence establishes that Complainant had never completely recovered from her ordeal. The overall picture conveyed by the documentary and testimonial evidence that Complainant presented in support of her claim for nonpecuniary damages is that she had preexisting anxiety and depression that had been aggravated by S1's discriminatory actions and that had subsided to the point where, although she was able to continue working, her personality and outlook had permanently changed from optimistic and hopeful to gloomy and pessimistic. Her relationships with family, friends, and colleagues had clearly deteriorated by mid-year 2008. On the basis of this evidence, we agree that the starting point for determining Complainant's nonpecuniary damages should be a base award of $150,000. We premise this determination on the severity and duration of the harm she suffered and the extensiveness of the evidence that Complainant has in support of her claim. Here, however, the causal connection between the three incidents of retaliation by S1 and Complainant's PTSD, depression and other conditions is much more tenuous than it was in the cases cited above. Complainant started to experience workplace-related stress and anxiety as far back as her detail to New York City in November 2004, well over two years before she came to be under S1's supervision. Just as critical is the fact that Complainant had been subjected to seven nondiscriminatory incidents that affected her symptoms while she was being supervised by S1, particularly S1's imposition of mandatory travel to Washington, DC, which occurred several months after the last incident found to be discriminatory. Third, Complainant experienced stress that arose from factors outside of work that had arisen after the retaliatory incidents at issue, including issues with her children and her aging parents, in particular the passing of her father. Since Complainant had prevailed in only three out of ten incidents, the base award must initially be reduced to 30% in accordance with Complainant's recovery ratio. Moreover, the fact that Complainant not only had a preexisting condition, but had also been exposed to stressors outside of work after the retaliatory incidents had occurred must also be accounted for in determining the size of the award. Based upon those considerations, we find that Complainant is entitled to nonpecuniary damages in the amount of $35,000. EQUITABLE RELIEF Complainant contends that, in addition to compensatory damages, she is entitled to restoration of leave that she had to use from July to December 2008. She concedes that she does not know the exact number of hours of leave that she used but estimates that she took 576 hours and contends that she is entitled to two thirds of that amount, or 384 hours. She also contends that she was denied Law Enforcement Availability Pay (LEAP) between February 1 and December 31, 2008. SIR 74; CAB, pp. 37-40 & n. 14, 77. The Agency denied Complainant's request for equitable relief on the grounds that it was not part of the compensatory damages order. FAD 1, pp. 8-9. We find that the Agency erred in summarily denying Complainant's request for lost leave and LEAP. Paragraph (3) of our order for relief in EEOC Request No. 0520120553 clearly directs the Agency to award Complainant back pay, including LEAP, and to determine the appropriate amount of back pay with interest and other benefits due. The Commission construes the word "benefits" in the order awarding back pay broadly to include annual leave and sick leave. Allen v. United States Postal Service, EEOC Petition No. 04990003 (May 24, 2002). Therefore, any leave or alternative pay that Complainant was entitled to but did not receive as a result of S1's retaliatory actions was within the scope of our order for relief in EEOC Request No. 0520120553. Because a finding of discrimination gives rise to a presumption of entitlement to an equitable remedy, the Agency must restore Complainant's lost leave and LEAP unless it can prove, by clear and convincing evidence, that Complainant would not have been entitled to those remedies even if discrimination had occurred, Complainant v. Department of Agriculture, EEOC Appeal no. 0120131896 (May 22, 2014). While the compliance documentation for this case indicates that the Agency issued its FAD on compensatory damages, posted the required notice, and provided training to its staff, as required by our order for relief in EEOC Request No. 0520120553, it does not appear that it fully complied with paragraph (3) of that order with respect to LEAP and restoration of leave taken between July and December of 2008. We will therefore direct the Agency to determine whether and to what extent Complainant is entitled to these equitable remedies. ATTORNEY'S FEES & COSTS Complainant seeks to recover fees generated and expenses incurred by Law Firm # 2 between March 1, 2013 and March 29, 2013. Supplemental Fee Petition dated March 29, 2013 (SFP) p. 2. The Commission's regulations authorize the award of reasonable attorney's fees and costs to a prevailing complainant. 29 C.F.R. § 1614.501(e). See also EEOC's Management Directive 110 (MD-110) (August. 5, 2015) Chapter 11, Section VI. Fee awards are typically calculated by multiplying the number of hours reasonably expended times a reasonable hourly rate, an amount also known as a lodestar. See 29 C.F.R. § 1614.501(e)(ii)(B); MD-110, Chapter 11, Subsection VI(F). Reasonable costs can include court reporter fees, transcripts, printing, witnesses, photocopying, mileage, postage, telephone calls, or any other reasonable out-of-pocket expense incurred by the representative in the normal course of providing representational services. 29 C.F.R. § 1614.501(e)(2)(ii)(C); MD-110, Chapter 11, Subsection VI(E). The attorney requesting an award has the burden of proving, by specific evidence, entitlement to the requested fees and costs. Koren v. U.S. Postal Service, EEOC Request No. 05A20843 (Feb. 18, 2003). An application for attorney's fees must include a verified petition accompanied by an affidavit executed by the attorney of record itemizing each expense comprising the attorney's charges for legal services, together with bills, receipts, or other appropriate documentation. 29 C.F.R. § 1614.501(e)(2)(ii)(B); MD-110, Chapter 11, Subsection VI(F)(1). While the attorney is not required to record in great detail the manner in which each minute of time was expended, the attorney does have the burden of identifying the subject matters on which he spent his time by submitting sufficiently detailed and contemporaneous time records to ensure that the time spent was accurately recorded. See Spencer v. Department of the Treasury, EEOC Appeal No. 07A10035 (May 6, 2003). Costs As we discussed above in our analysis of Complainant's claim for past pecuniary damages, a nine-thousand-dollar charge to summarize pre-existing clinical information is not reasonable regardless of whether it is considered a medical or a legal expense. The next question that needs to be answered is what proportion of the cost of preparing the report can be considered reasonable. Beyond her contention that she is entitled to the entire sum, Complainant has not presented sufficient information for the Commission to make a determination as to how much of the cost of the report she is entitled to recoup. We will therefore exercise our discretion and utilize the recovery ratio that we articulated above in our discussion of nonpecuniary compensatory damages. This will allow Complainant to claim 30% of the cost of the report, which comes out to $2,703.00. See Poquiz v. Department of Homeland Security, EEOC Appeal No. 0720050095 (April 10, 2008), request for reconsideration denied EEOC Request No. 0520080524 (June 19, 2008) citing Bernard v. Department of Veterans Affairs, EEOC Appeal No. 01966861 (July 17, 1998) (applying across the board reduction of costs by 50% where insufficient information provided by the employee to make a determination on reasonableness of costs requested). Complainant also claims expenses in the amount of $23.05 on the March 29, 2013 billing statement. We find this amount to be reasonable. Consequently, Complainant is entitled to recover costs in the amount of $2726.05. Reasonable Hourly Rate The reasonable hourly rate is generally determined by the prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skill, experience and reputation. Blum v. Stenson, 465 U.S. 886 (1984). If a party does not find counsel readily available in her locality with whatever degree of skill that may reasonably be required, it is reasonable that the party may go elsewhere to find an attorney even if it results in the payment of a higher hourly rate than the prevailing market in the location where the action arose. See Southerland v. U.S. Postal Serv., EEOC Appeal No. 01A05403 (Oct. 16, 2002). The Agency determined that the hourly rates claimed by the attorneys in Law Firm # 2 who worked on Complainant's case were excessive and accordingly determined that it would compensate Law Firm # 2's attorneys at the prevailing market rates in Houston, Texas, FAD2, p. 4. However, in EEOC Appeal No. 0120140049, the case in which we awarded fees to Complainant's attorneys from Law Firm # 1, we determined that the Agency should have calculated fees using the market rates for attorneys practicing in Washington DC, not Houston. See discussion, supra. Accordingly, as in Appeal No. 0120140049, we will recalculate the fee award using the hourly rates for Washington, DC. Those rates are as follows: Principal Attorney - $753; Associate (1) - $383; Associate (2) - $312; Associate (3) - $383; Paralegal - $170. Fees Appeal Brief (FAB), pp. 1-5, 11, 14-15; Original Fee Petition dated March 1, 2013 (OFP), pp. 7-9; SFP, p. 5; Affidavit of Principal Attorney, ¶¶ 18-20, 22; Affidavit of Associate (1), ¶ 12; Complainant's Appeal Exhibits (CAE) 1, 2. Hours Reasonably Expended and Fees All hours reasonably spent in processing the complaint are compensable, but the number of hours should not include excessive, redundant, or otherwise unnecessary hours. MD-110 at 11-5 citing Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). According to the supplemental fee petition and the billing statement from Law Firm # 2 dated March 29, 2013, the firm claims compensation for 74 hours of legal work, broken down as follows: Principal Attorney - 2.0 hours; Associate (1) - 4.0 hours; Associate (2) - 67.5 hours; Associate (3) - 0.1 hours; Paralegal - 0.4 hours. We commence our analysis with Associate (2), who performed the bulk of the substantive legal work on Complainant's case. Complainant argues that Associate (2)'s work required extensive review of the evidentiary record, gathering of additional evidence in support of Complainant's damages claims, interviewing witnesses, and sorting out an extremely complex causation chain. FAB, pp, 18-20; SFP, pp. 4-5; Billing Statement dated March 29, 2013. The Agency reduced the number of hours claimed by Associate (2) by 15.5 hours. FAD 2, pp. 5-6. While the Agency clearly disagrees with Complainant regarding the reasonableness of these hours, the fact remains is that they are documented and supported by contemporaneously prepared records. The Agency has not presented any documents or testimony tending to show that the services performed during these hours were excessive or out-of-line with services provided by attorneys with experience in federal sector employment discrimination law. The only point of contention we can find is 0.1 hours claimed on March 14, 2013, for a conference between Associate (2) and Associate (3), who also claimed the same amount of time. The time claimed by Associate (3) for the same conversation is duplicative and will be disallowed. At an hourly rate of $312 for 67.5 hours of work performed by Associate (2), Complainant is entitled to $21,060 in fees. Regarding Associate (1), she was responsible for preparing the two fee petitions. The Agency disallowed 1.1 hours claimed by Associate (2) for her work on the SFP on the grounds that a fee petition is a standard document that was markedly similar to the OFP. FAD 2, p. 5. While a fee petition document may be standard, the complexity, and consequently the time it takes to prepare each individual fee petition will vary from case to case. In preparing the SFP, Associate (1) had to compare it with the OFP to ensure that there were no duplicate submissions. She also had to review the computerized entries and reduce them to a digestible summary. While the two fee petitions may not have been substantially different, the data and fee calculation that went into the SFP were substantially different and required meticulous review of entries in order to ensure accuracy. At an hourly rate of $383 for 4.0 hours of work performed by Associate (1), Complainant is entitled to $1,532 in fees. As to the Principal Attorney, the Agency disallowed 0.9 hours that she spent reviewing the fee petition, characterizing this entry as duplicative. FAD 2, p. 5. Again, we disagree. As the sole equity owner of the firm, the Principal Attorney is responsible for ensuring the firm's ongoing financial viability. Reviewing documents relevant to the firm's income is not only non-duplicative, it is essential. FAB, pp. 16-17. At an hourly rate of $753 for 2.0 hours of work, Complainant is entitled to $1,506 in fees The Agency disallowed the time claimed by the paralegal for reviewing statements as clerical work. FAD 2, p. 5. Complainant did not contest this reduction. As previously noted, we affirm the Agency's disallowance of 0.1 hours claimed by Associate (3) as duplicative. Fee Petition In addition to compensation for legal work done on the main case, Complainant requests reimbursement for 40.6 hours expended by Law Firm # 2 in preparing the SFP.2 FAB, p. 22; CAE 3; Affidavit of Principal Attorney dated November 12, 2013. The Commission's position on awarding fees for time spent preparing and litigating fee petitions had evolved over the years. Prior to 1998, the Commission followed the Sixth Circuit's approach of capping the number of hours that could be claimed for the fee petition at 3 % of the hours spent on the main case in the absence of a hearing and 5 % of the hours spent on the main case if there was a hearing. See e.g. Nehemkis v. Department of Veterans Affairs, EEOC Appeal No. 01891733 (November 16, 1989) citing Coulter v. State of Tennessee, 805 F.2d 146, 151 (6th Cir. 1986). However, in Black v. Department of the Army, EEOC Request No. 05960390 (December 9, 1998), the Commission abandoned that approach and adopted a reasonableness standard in addressing awards for prosecuting fee petitions, finding it to be a better method than imposing arbitrary limits. For prevailing parties, this means that while there are no longer caps on the number of hours that can be spent on preparing and litigating the fee petition, that number must be not be too far out of line with the number of hours expended in the main case. See Resnick v. Department of Homeland Security, EEOC Appeal No. 07A20040 (October 30, 2003) citing Black, supra. By eliminating the caps, the Commission clearly intended that whether the number of hours spent on fee petitions is reasonable should be determined on a case-by-case basis. Following this approach, the Commission has allowed 14 hours expended on a fee petition when 96 hours was expended in the main case, Gray v. United States Postal Service, EEOC Request No. 05981074 (October 5, 2001), 54 hours expended on a fee petition with 156 hours expended in the main case, Hironaka v. United States Postal Service, EEOC Appeal No. 01A52553 (November 29, 2005), and 21 hours expended on a fee petition with 177 hours spent on the main case, Poquiz v. Department of Homeland Security, supra. In the instant case, Law Firm # 2 claims almost 41 hours to prepare and defend its fee petition when it only spent 74 hours on the main case. In other words, it took Law Firm # 2 more than half the time to prepare the fee petition that it needed for the main case. Commission precedent permits across-the-board reductions but does not require them. Swanson v. Department of Homeland Security, EEOC Appeal No. 0720100026 (March 8, 2011). We have used this tool in past situations in which the fees or costs expended in successful claims could not be separated from those expended in unsuccessful claims. Ames v. Department of the Army, EEOC Appeal 01A21613 (November 26, 2002) (65% reduction); Altman v. Department of the Army, EEOC Appeal No. 01A10691 (June 20, 2002) (70% reduction). Therefore, rather than reduce the number of hours by an arbitrarily chosen percentage, we will do so by including only those fees directly associated with the preparation of the fee petition by Associate (4) and excluding the remainder. According to Law Firm # 2's automated billing statement, Associate (4) spent 27.9 hours conducting legal research, drafting and editing the fee petition, and preparing the related appeal and other associated documents. At an hourly rate of $320, this comes out to fees in the amount of $8928.00. When compared to the 74 hours expended on the main case, this number is still a little high but within the range that we would consider reasonable under our precedent. Law Firm # 2 also claims costs incurred in preparing the fee petition in the amount of $3,156.10. The only significant cost item is a charge for the use of Lexis-Nexis that came out to $3,016. According to the billing statement, itemized as follows: September 26 - $465; September 27 - $1069; November 4 - $63; and November 8 - $175. The total for those expenditures comes out to $1,772 not $3,016. A difference of $1,244 remains unaccounted for. Accordingly, we will reduce costs claimed of $3156.10 by $1244 for a total of $1912.10. Total Overall, we find that Complainant is entitled to $37,664.15 in attorneys' fees and costs. FINDINGS We find that Complainant is entitled the difference between the total amount awarded by the Commission and the amount already awarded by the Agency, consisting of the following: Award Component Agency Award EEOC Award Difference Compensatory Damages $40,855.50 $53,355.50 $12,500.00 Attorney's Fees & Costs $15,415.00 $37,664.15 $22,249.15 Total Award $56,270.50 $91,019.65 $34,749.15 CONCLUSION After a careful review of the record in its entirety, including consideration of all statements submitted on appeal, we MODIFY the Agency's final decisions addressing the amount of compensatory damages to be awarded to Complainant and the amount of attorney's fees and costs to be awarded to Law Firm # 2 and REMAND this matter to the Agency for action consistent with this decision and the Order below. ORDER (C0610) To the extent that it has not already done so, the Agency is ORDERED to take the following remedial action within twenty (20) calendar days of when this decision becomes final: 1. If the Agency has already awarded Complainant $56,270.50, it shall issue a check to Complainant for the remaining $34,749.15. Alternatively, if the Agency has not yet made an award for compensatory damages and attorneys' fees and costs, it shall issue a check to Complainant in the amount of $91,019.65. 2. The Agency shall restore any leave taken by Complainant between July and December 2008, and shall award Complainant any back pay in the form of Law Enforcement Availability Pay (LEAP) that Complainant had lost as a result of S1's retaliatory actions, together with interest and any other benefits due, unless it presents clear and convincing evidence that Complainant is not entitled to restored leave or LEAP despite S1's acts of reprisal. 3. 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. ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency - not to the Equal Employment Opportunity Commission, Office of Federal Operations - 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 (M0815) 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 Chap. 9 § VII.B (Aug. 5, 2015). 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: Carlton M. Hadden Director Office of Federal Operations Footnotes 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. 2 Counsel claimed $2,400 in fees for preparation of the OFP, which the Agency paid in full.