U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nia G,1 Complainant, v. Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency. Appeal No. 0120160716 Agency No. HSICE015952011 DECISION On December 22, 2015, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency's November 10, 2015 final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. BACKGROUND Introduction During the relevant period, Complainant worked as an Administrative Assistant, placed by a private staffing firm (PSF), at the Agency's Immigration and Customs Enforcement Service Processing Center in Florence, Arizona. On October 25, 2011, Complainant filed an EEO complaint alleging that the Agency unlawfully retaliated against her for prior protected EEO activity when, on April 14, 2011, PSF (at the direction of the Agency) terminated Complainant's employment.2 The Agency investigated Complainant's claim. Post EEO Investigation Following an investigation of Complainant's complaint, the Agency informed Complainant of the right to request a hearing before an EEOC Administrative Judge or an immediate final agency decision. Complainant requested the latter. The Agency issued a final decision finding no discrimination, stating that Complainant was not an employee of the Agency. Complainant filed an appeal with this Commission, which EEOC docketed as McKelvy v. Dep't of Homeland Security, EEOC Appeal No. 0120142302. Appeal of Complaint On January 28, 2015, in the decision for EEOC Appeal No. 0120142302, the Commission found that the Agency had unlawfully retaliated against Complainant in violation of Title VII. EEOC determined that the Agency was a joint employer of Complainant for EEO complaint process purposes, and that the Agency retaliated against Complainant when it had her removed from employment. The final agency decision was reversed and the Agency was ordered to remit back pay from April 14, 2011 (the date of Complainant's removal) through July 19, 2011 (the day before Complainant waived her restoration to employment rights with PSF) less the $12,500 in back-pay paid by PSF, conduct a supplemental investigation and issue a final decision on compensatory damages, provide training to the responsible management official (RMO), and consider disciplinary action against RMO.3 The Commission found there was no mechanism to restore Complainant to joint employment with the Agency and PSF based on Complainant's waiver of restoration rights. EEOC found further that front pay was not appropriate based on Complainant's agreement to waive her restoration rights. Post Appeal and Request for Relief On April 19, 2015, Complainant submitted documentation for make whole relief to the Agency. Complainant requested the remedial relief indicated in the table below: CATEGORY RELEVANT DATES AMOUNT EXPLANATION 1. BACK PAY AND BENEFITS a. Back pay and Benefits April 14, 2011 (termination) to December 19, 2015 (Agency's tardiness 8 months past Complainant's submission of damages request). $250,000 $52,000 annual salary plus benefits that were 40% of her salary. Complainant stated that the Agency is liable for back pay and benefits because EEOC found a joint employment relationship with the Agency and PSF, and the settlement agreement regarding back pay does not fulfill the Agency's obligations. Complainant stated, "waiver of reinstatement is on its face retaliation per se in a discrimination case." Complainant also requested front pay. Complainant stated that her current job pays $40,000 less than her position at the Agency. Complainant stated that she did not voluntarily resign from PSF and she entered in the agreement under duress. 2. PECUNIARY COMPENSATORY DAMAGES a. Loss on sole personal vehicle May 11, 2011 $9,529 Loss due to selling truck for $17,200 loan balance rather than blue book value of $26,729, to prevent repossession. Complainant provided a Blue Book Value (without value given) printout for a 2007 Dodge Ram 3500 Mega Cab SLT Pickup 4D, very good condition, 100,000 miles and a Bank Deposit Ticket, dated May 11, 2011, with a name other than hers. b. Wear and tear on present vehicle Since October 2014 $24,725 IRS mileage rate of $0.575 per mile and distance driven for new job. Complainant stated that she diligently searched for jobs and accepted one in Louisiana, but returned to Arizona after a month due to her need for closer proximity to her family and nowhere to live in Louisiana. In October 2014, she found a replacement position but it required a two hour per day (100 miles) roundtrip commute. Complainant stated, prior to her termination, she worked 3.5 miles from her home. c. Loss from 401K plan 2013 $15,821.73 plus interest of $791/year (5%) To cover living expenses for five years from her termination. Complainant provided a 2013 Form 1099-R, dated January 22, 2014, stating that she had a gross distribution of $15,821.73 from a pension, annuity, retirement or profit sharing plan. The form indicates that $1,582.17 in federal income tax was withheld. d. Loss from savings account July 14, 2011 to August 10, 2011 $40,822 plus interest of $2,041 annually (5%) To cover living expenses for five years from her termination. Complainant provided one page of a bank savings account statement, dated July 14, 2011 to August 10, 2011, indicating a beginning balance of $3,122.44, a deposit of $37,700.28, a withdrawal of $1,500, and an ending balance of $39,322.72. e. Loss of health insurance - Consolidated Omnibus Budget Reconciliation Act (COBRA) After April 2011 termination $6,000 Complainant stated that she was unable to afford COBRA so she did not purchase it, but it could have covered her medical expenses. Complainant provided a January 2011 PSF COBRA rates sheet. f. Losses on her home 2013 $4,577.47 Complainant requested losses on her home because she accepted a position in Louisiana and rented her home for $400 less than the monthly mortgage of $1,052. Complainant also stated she incurred repair and replacement expenses due to renting her home. Complainant provided a typewritten sheet indicating Renter Damage: General Clean up and Repair $1,177.47, Refrigerator $1,323.45, Stove $572, Toilet purchase and installation $185, Replacement of Partial Flooring $160, and Dishwasher replacement $700 plus. g. Job Seeking Expenses 2013 $3,556.47 Complainant requested damages for plane fare to Louisiana for a job, moving expenses to and from Louisiana, and $400 subsidy of Complainant's mortgage to renters. Complainant provided credit card statements, dated in 2013, that are difficult to read. h. Life and Career Coaching May 2011 to January 14, 2014 $33,039.33 $200/hour Complainant provided an unsigned declaration from her Career Coach and a billing statement for 165.20 hours, totaling $33,039.33. The Career Coach, who is Complainant's sister, stated that she provided Complainant personal and career guidance. The billing statement also indicates she assisted Complainant with her complaint and meetings with attorneys. i. Future Medical Expenses Since April 14, 2011 $39,800 Complainant estimated her future medical expenses. Complainant stated that her emotional distress and financial losses continue and she did not have medical insurance or finances to obtain professional treatment after her termination. Complainant estimated three weeks of inpatient care for $21,000, 104 sessions of counseling at $15,600, and eight visits of psychiatric care at $3,200. 3. ATTORNEYS' FEES AND COSTS4 a. Labor and Employment Law Firm - Attorney 1 (A1) and Attorney 2 (A2) July 12, 2011 to October 9, 2012 $1,784.96. A1 stated that Complainant paid him. State of Arizona - A1 ($410/hour) and A2 ($380/hour). b. Attorney 3 (A3) January 14, 2014 $280 State of Arizona - Complainant provided credit card statement showing payment of $280 to A3's law firm. c. Employment Attorney with more than 20 years of experience - Attorney 4 (A4) and Paralegals5 April 3, 2015 to April 19, 2015 $9,082.50 State of Arizona - 17.3 hours for A4 ($400/hour) and 17.2 hours for two paralegals ($125/hour). Agency Decision on Remedies On November 10, 2015, the Agency issued a final decision awarding Complainant $10,000 in nonpecuniary, compensatory damages, stating that Complainant prevailed in her termination claim and not a hostile work environment claim. The Agency did not award pecuniary damages or attorney's fees. The Agency stated that Complainant failed to substantiate the need to sell her personal vehicle below-market-value or show the actual sales transaction and a nexus with the discriminatory actions; Complainant failed to substantiate employment at a location 100 miles roundtrip from her home or to show that she could not obtain a job within her local commuting area; Complainant failed to substantiate out-of-pocket expenses for COBRA coverage; Complainant failed to substantiate rental of her home, the rate of rental, or expenses and losses incurred due to rental; Complainant failed to substantiate expenses related to job searching in Louisiana or moving there; Complainant failed to substantiate her claim for future counseling and medical expenses; and Complainant submitted a claim for reimbursement for her sister serving primarily as her EEO representative and compensation is not provided for a non-attorney representative. Further, the Agency stated that Complainant's request for attorneys' fees was untimely and included requests for fees from attorneys for whom the Agency did not receive proper notice of representation. Appeal of Remedies On December 22, 2015, Complainant filed the instant appeal of the Agency's relief decision. Complainant stated that she struggled to keep her home, lost her sole means of transportation, and had to move from a five-bedroom house on a large parcel of land to one bedroom in her parents' home. She stated that she slept and cried all the time, had insomnia, felt "worthless" and embarrassed, and wanted to die. Complainant stated that she carries "so much hatred, anger, and negativity" with her since the consequences of her termination. Complainant stated that she knew she needed professional help, but could not seek it due to her dire financial situation. Complainant stated that she had to borrow a relative's vehicle to look for work and felt like "a charity case." Complainant stated that she could only find part-time work locally and had to search for work in Louisiana. She stated that she moved to Louisiana and planned to stay with friends, but the housing arrangement did not work out. Complainant stated that she could not afford to support two separate households and returned to Arizona after a month. Complainant stated that she lived on her savings and cashed in her 401K. Also, Complainant stated she was devastated because she was known for her positive attitude and good work and that changed due to RMO's lies. Complainant stated that she had severe depression, withdrew from life, wanted to be away from people but did not want to be home alone, and felt like she was going crazy. Complainant stated that she could not figure out why RMO would do this to her - ruin her reputation and have her physically escorted off Agency premises like a criminal. Complainant stated that, ultimately, she had to return to her former profession of health care after eight years and had to start at the bottom. Complainant stated that she has anxiety with any supervision and fears reprimand and termination. Further, Complainant stated that she must drive by the Agency facility every day and feels embarrassed in her small community. On appeal, Complainant stated that her sister, a professional Career Coach, acted as her representative until she hired an attorney after liability was found. Complainant's sister (CS) stated that CS stated that Complainant was always "self-sufficient, independent, self-motivated, and a happy individual." She stated that her sister changed in April 2011. CS stated Complainant lost her job just before her son's wedding and was "despondent and reclusive" at the wedding. CS stated that Complainant lost her sense of identity, the ability to trust herself, and her self-esteem. CS stated that the April 2011 termination was the first for Complainant and that Complainant was from a small town where everyone knew each other's business. CS stated that Complainant is "a completely different person." She described Complainant as bitter, angry, embarrassed, and void of confidence. A former Agency Assistant Health Services Administrator (AHSA) stated that he was Complainant's supervisor between 2003 and 2005, and they remained friends. He stated that Complainant complained of a hostile work environment by her supervisor, RMO. AHSA stated that, in April 2011, Complainant called him very emotional and crying to inform him of her removal from Agency employment. He stated that Complainant has been in great emotional pain over the years since termination. AHSA stated that Complainant has experienced many hurtful and humiliating events since her termination, including having to put her house on the market, sell her only vehicle, rent her home, and move in with her family. Complainant's Mother (CM) stated that Complainant enjoyed going to work every day until RMO became her supervisor. Further, CM stated that, after Complainant's removal, she became distant, unhappy, and depressed. CM described Complainant as "brow beaten." She stated that Complainant was unable to seek professional help but her sister, a professional career coach, assisted her. CM stated, "I felt like I was losing my daughter." ANALYSIS AND FINDINGS When discrimination is found, the Agency must provide the Complainant with a remedy that constitutes full, make-whole relief to restore her as nearly as possible to the position she would have occupied absent the discrimination. See, e.g., Franks v. Bowman Transp. Co., 424 U.S. 747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975); Adesanya v. U.S. Postal Service, EEOC Appeal No. 01933395 (July 21, 1994). The instant appeal is solely confined to the relief ordered for the Agency's retaliatory termination of Complainant's employment through a private staffing firm, PSF. Back Pay In the instant appeal, Complainant stated that she should be awarded back pay from the effective date of her discharge (April 14, 2011) through the date of the Agency's tardiness eight months past her submission of a request for damages (December 19, 2015). The Commission, in Appeal No. 0120142302, found that reinstatement was not appropriate as there was no legal mechanism to restore Complainant's joint employment following her waiver of reemployment with PSF. The Commission awarded back pay from Complainant's discharge date (April 14, 2011) through the day before Complainant signed an agreement waiving any right to reemployment with PSF (July 19, 2011). In 0120142302, EEOC informed Complainant of the right to request reconsideration of its final decision. 6 Complainant did not file such a request. Accordingly, EEOC will not re-address the dates of back pay awarded. We find that the award of back pay from April 14, 2011 through July 19, 2011 stands. Compensatory Damages Pursuant to section 102(a) 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 (e.g., pain and suffering, mental anguish) as part of this "make whole" relief. 42 U.S.C. § 1981a(b). In West v. Gibson, 119 S.Ct. 1906 (1999), the Supreme Court held that Congress afforded the Commission the authority to award compensatory damages in the administrative process. For an employer with more than 500 employees, such as the Agency, the limit of liability for future pecuniary and non-pecuniary damages is $300,000. 42 U.S.C. § 1981a(b)(3). Pecuniary Compensatory Damages Pecuniary losses are out-of-pocket expenses incurred due to an employer's unlawful action, including job-hunting expenses, moving expenses, medical expenses, psychiatric expenses, physical therapy expenses, and other quantifiable out-of-pocket expenses. Past pecuniary losses are the pecuniary losses that are incurred prior to the resolution of a complaint. The Commission, however, requires documentation in support of these expenses, typically in the form of receipts, bills, or physician's statements. See Minardi v. United States Postal Service, EEOC Appeal No. 01981955 (October 3, 2000); Gause v. Social Security Administration, EEOC Appeal No. 01972427 (March 8, 2000). We agree with the Agency's decision to not award pecuniary damages in the instant matter. Damages for past pecuniary losses will not normally be awarded without documentation. Enforcement Guidance: Compensatory and Punitive Damages Available under § 102 of the Civil Rights Act of 1991 at II.A.1 (July 14, 1992). We find that Complainant failed to provide adequate documentation to clearly show that she incurred pecuniary losses and that any said losses are a result of the Agency's discriminatory actions or conduct. Id. Non-Pecuniary Compensatory Damages The Commission notes that damage awards for emotional harm are difficult to determine and there are no definitive rules governing the amount to be awarded in given cases. In this regard, the Commission finds that a proper award must meet two goals: not be "monstrously excessive" standing alone and be consistent with awards made in similar cases. See Cygnar v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989). Moreover, we point out that nonpecuniary, compensatory damages are designed to remedy a harm and not to punish the Agency for its discriminatory actions. Section 102(a) of the 1991 Civil Rights Act authorizes an award of compensatory damages for all post-act pecuniary losses, and for non-pecuniary losses, such as, but not limited to, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to character and reputation, and loss of health. To receive an award of compensatory damages, Complainant must demonstrate that she has been harmed 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. Dep't of the Navy, EEOC Appeal No. 01934157 (July 22, 1994), request for reconsideration denied, EEOC Request No. 05940927 (December 8, 1995); EEOC's Enforcement Guidance: Compensatory and Punitive Damages Available under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 (July 14, 1992) ("Guidance"). Statements from others, including family members, friends, and health care providers can address the outward manifestations of the impact of the discrimination on the complainant. Id. The complainant could also submit documentation of medical or psychiatric treatment related to the effects of the discrimination. Id. Non-pecuniary damages must be limited to the sums necessary to compensate the injured party for the actual harm and should consider the severity of the harm and the length of time the injured party has suffered from the harm. Carpenter v. Dep't of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995). In determining nonpecuniary, compensatory damages, the Commission strives to make damage awards for emotional harm consistent with awards in similar cases. In this case, Complainant asserted that her retaliatory termination transformed her from a positive, happy person to a person with severe emotional distress. The record reveals that she did not have a preexisting mental health or emotional condition prior to her termination. Complainant stated that she struggled to keep her home, lost her sole means of transportation, had to move in with her parents, could not find a full-time job locally, and had to commute 100 miles daily to a job that paid less than she made in her Agency position. Complainant stated that she slept and cried all the time, felt "worthless", experienced insomnia, and wanted to die. Complainant stated that she felt like she was going crazy and needed professional help, but she could not afford it. Complainant stated that she had to live on her savings and retirement withdrawals. Complainant stated that RMO's lies ruined her reputation and caused her to be removed from Agency property as if she were a criminal. Complainant stated that she lives in a small town where everyone knows everyone else's business and she is humiliated. Complainant stated that she continues to be impacted by her discriminatory termination. Complainant's sister, CS, and their mother, CM, corroborated her contentions. CS stated that her sister changed following her termination and is "a completely different person." CS stated that Complainant lost her sense of identity, the ability to trust herself, and her self-esteem. CM stated, "I felt like I was losing my daughter." Complainant's former supervisor and friend, AHSA, stated that Complainant has been in great emotional pain and experienced a lot of humiliation over the years since her termination. After considering the awards in similar cases and the relevant factors discussed above, we find the Agency's $10,000 award insufficient to remedy the harm that its actions caused Complainant. We find $110,000 a reasonable award of nonpecuniary, compensatory damages to Complainant for the proven emotional and psychological distress she suffered as a direct result of the Agency's retaliatory conduct (termination of employment). See Billy B. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120132680 (November 19, 2015) (Commission awarded $85,000 in nonpecuniary, compensatory damages where Agency denied reasonable accommodation to and discharged Complainant, which exacerbated his preexisting condition and caused emotional distress); Mohar v. U.S. Postal Service, EEOC Appeal No. 0720100019 (August 29, 2011) (Commission awarded $100,000 in nonpecuniary, compensatory damages where Agency retaliated against Complainant, which contributed to severe emotional distress, a complete transformation from an outgoing happy person, anxiety, depression, and self-loathing); Millard v. U.S. Postal Service, EEOC Appeal No. 01991535 (May 31, 2001) (Commission awarded $75,000 in nonpecuniary, compensatory damages where Agency harassed and then removed Complainant, which contributed to stress, anxiety, disturbed sleep, social withdrawal, impaired concentration and memory, and fatigue); Complainant v. Dep't of Homeland Security, EEOC Appeal No. 0720130035 (October 20, 2015) (Commission awarded $125,000 in nonpecuniary, compensatory damages where Agency harassed Complainant, which resulted in stress-related Diabetes, Major Depressive Disorder, Post Traumatic Stress Disorder, panic attacks, low self-esteem, impaired concentration, nightmares, a damaged professional reputation, isolation, weight gain, and paranoia). We find this award is not motivated by passion or prejudice, not "monstrously excessive" standing alone, and is consistent with the amounts awarded in similar cases. Attorney's Fees and Costs In appropriate circumstances, this Commission may award a complainant reasonable attorney's fees and other costs incurred in the processing of a complaint regarding allegations of discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000e et seq. See 29 C.F.R. § 1614.501(e)(1). Indeed, a finding of discrimination raises a presumption of entitlement to an award of attorney's fees, and any such award of attorney's fees or costs must be paid by the agency that committed the unlawful discrimination in question. See 29 C.F.R. §§ 1614.501(e)(1)(i), (ii). To determine the precise amount of fees and costs due, the complainant's attorney must submit to the agency a verified statement of attorney's fees (including witness fees, if applicable) and other costs, as appropriate. See 29 C.F.R. § 1614.501(e)(2)(i). This statement must be accompanied by an affidavit executed by the attorney of record itemizing the attorney's charges for legal services. Id. The agency must then issue a decision determining the amount of attorney's fees or costs it deems to be due, and include in this decision the specific methods applied in determining the amount of this award. See 29 C.F.R. § 1614.501(e)(2)(ii)(A). If the complainant is dissatisfied with this decision, he or she may appeal it to EEOC. Id. The precise amount of attorney's fees due in these situations is typically determined by multiplying the number of hours reasonably expended by the attorney in question by a reasonable hourly rate. See 29 C.F.R. § 1614.501(e)(2)(ii)(B); see also Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). This amount is often referred to as the "lodestar." "There is a strong presumption that this amount represents the reasonable fee," though "[i]n limited circumstances, this amount may be reduced or increased in consideration of the degree of success, quality of representation, and long delay caused by the agency." 29 C.F.R. § 1614.501(e)(2)(ii)(B). All hours reasonably spent in processing the complaint are compensable. Fees shall be paid for services performed by an attorney after the filing of a written complaint, provided that the attorney provides reasonable notice of representation to the agency, Administrative Judge, or Commission, except that fees are allowable for a reasonable period of time prior to the notification of representation for any services performed in reaching a determination to represent the complainant. 29 C.F.R. § 1614.501(e)(1)(iv). We partially agree with the Agency's finding on attorney's fees. The record does not show that Complainant provided the Agency reasonable notice of representation by Attorneys 1, 2, or 3. Complainant's formal complaint, dated October 25, 2011, designates her sister, CS, as her representative. Attorneys 1 and 2 billed for hours between July 12, 2011 and October 9, 2012, but there is no indication that Complainant's representation changed from CS during that time. Further, there is a credit card charge of $280 to Attorney 3 on January 14, 2014, but there is no indication of a change of representation to Attorney 3. Further, there is no verified statement of fees or affidavit from Attorney 3. Also, on appeal, Complainant stated that CS acted as her representative until she hired an attorney once liability was found. (Complainant designated CS as her representative on her June 2014 appeal form.) The Commission issued the decision for EEOC Appeal No. 0120142302 on January 28, 2015. At that time, EEOC provided the Agency 120 days to conduct a supplemental investigation and issue a final decision on damages. Complainant and Attorney 4 entered into a Retainer Agreement on April 9, 2015. Complainant submitted her request for damages, with Attorney 4 designated as her representative, on April 19, 2015. Attorney 4 provided an invoice for legal services performed between April 3, 2015 and April 19, 2015 - 17.30 hours at $400 per hour for herself and 17.20 hours at $125 per hour for her paralegals. We find the Agency had reasonable notice of Complainant's legal representation by Attorney 4 for the request for damages submission. Further, we find 17.30 hours at $400 per hour for Attorney 4 and 17.20 hours at $125 per hour for her paralegals appropriate. Summarily, we are not awarding attorney's fees for work performed by Attorneys 1, 2, or 3. However, we find $9,082.50 reasonable for attorney's fees and costs for Attorney 4. Also, we find attorney's fees and costs in furtherance of this appeal in order. EEOC Management Directive 110, Chapter 11, § VI.F.1.c (August 2015). ORDER To the extent it has not already done so, the Agency shall provide the following remedial relief within sixty (60) calendar days of the date of this decision: 1. 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 60 calendar days from the date of this decision.7 Back pay shall be paid from the date Complainant was terminated in April 2011 through July 19, 2011 (the day before she signed the mediation agreement waiving any right to re-employment with the staffing firm.) The Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to the Complainant. The Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision." 2. Award Complainant $110,000 in non-pecuniary compensatory damages. 3. Pay Complainant $9,082.50 in attorney fees and costs. 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 calculation of back pay and other benefits due Complainant, including evidence that the corrective action has been implemented. ATTORNEY'S FEES (H1016) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he 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 the date this decision was issued. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501.8 IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617) 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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (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's signature Carlton M. Hadden, Director Office of Federal Operations February 6, 2018 __________________ Date 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 In July 2011, the staffing firm and Complainant entered into several agreements. Pertinently, the firm agreed to pay Complainant $12,500 in back pay and $37,000 in compensatory damages. Complainant agreed to resign effective April 14, 2011, and waived her right to reemployment or future referral with or through the staffing firm. 3 We note that RMO was removed from the Agency not long after Complainant's termination. 4 We note that Complainant's sister, a non-attorney, was listed as her designated representative on her formal EEO complaint filed on October 25, 2011. Her sister was also listed as her representative on the Notice of Appeal form dated June 17, 2014. 5 Complainant entered into a Retainer Agreement for representation with A4 on April 9, 2015. 6 The parties were informed that, if neither party filed a request for reconsideration, the appellate decision would be final within 30 days after the parties received it, and there was a five-day after mailing presumption of receipt. 7 As part of mitigation, the Agency may deduct the $12,500 in back pay Complainant received from her former staffing firm. 8 In the instant decision, the Commission awarded attorney's fees for services performed by Attorney 4 between April 3 and 19, 2015. If Complainant utilized an attorney for the instant appeal of remedies, because she prevailed, she may apply through the attorney to the Agency for attorney's fees and costs in accordance with 29 C.F.R. § 1614.501(e). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120160716 2 0120160716