U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Emiko S.,1 Complainant, v. Anthony Foxx, Secretary, Department of Transportation (Federal Aviation Administration), Agency. Appeal No. 0120161130 Hearing No. 570-2013-00783X Agency No. 200922760FAA06 DECISION On February 18, 2016, Complainant filed an appeal from the Agency's January 28, 2016, final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. § 1614.401(e). For the following reasons, the Commission MODIFIES the Agency's final order. ISSUES PRESENTED Whether the Equal Employment Opportunity Commission Administrative Judge (AJ) erred when she: 1. Awarded only $50,000 in non-pecuniary damages, and denied Complainant's request for pecuniary damages; 2. Made the award of back pay contingent upon Complainant completing an individualized assessment; 3. Denied Complainant a gross upfront payment to offset the tax consequences from receiving a lump sum back pay award and; 4. Reduced the attorneys' fees award by one-third. BACKGROUND On April 28, 2008, the Agency tentatively offered Complainant a position as an Air Traffic Control Specialist (ATC) in the Fort Worth Air Traffic Center in Fort Worth, Texas. This offer was contingent upon the results of Complainant's medical evaluation and a background investigation. At a young age, Complainant developed monocular vision and has no vision in her left eye. Complainant stated that she learned to compensate and that her sight is "equivalent to binocular vision." On May 6, 2008, the Southwest Regional Flight Surgeon disqualified Complainant because Agency policy required that ATCs possess 20/20 distant acuity vision and 20/30 near visual acuity in each eye, as well as normal fields of vision in each eye. Complainant appealed the decision to the ATC Medical Appeals Coordinator (MAC), and requested a reasonable accommodation in the form of a waiver for the vision requirement. She also requested an opportunity to demonstrate her abilities to perform the essential functions of the ATC position. After the ATC MAC reviewed statements from Complainant's physicians and conducted medical research, he recommended that Complainant not be given a waiver. Complainant's case was then forwarded to a review panel of six doctors, who sustained the medical disqualification. On April 21, 2009, Complainant was notified that her appeal was denied because the Agency determined that hiring her as an ATC would increase the risk of operational errors and degrade public safety. The Agency also determined that there was no accommodation that would eliminate the risks attributable to Complainant's medical condition. On September 14, 2009, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the basis of disability (monocular vision) for failing to provide her with a reasonable accommodation when it denied her request for a waiver of the vision requirements for an ATC position. Complainant requested a hearing before an Administrative Judge (AJ-1), who issued a decision without a hearing on September 30, 2010. AJ-1 found that Complainant was not "medically qualified" to work as an ATC because she did not possess 20/20 distant acuity vision, 20/30 near visual acuity in each eye, as well as normal fields of vision in each eye, as required by the Agency's federal safety standard. Accordingly, AJ-1 found that Complainant was not a qualified individual with a disability within the meaning of the Rehabilitation Act, and had not shown that the Agency discriminated against her when it failed to provide a reasonable accommodation. Complainant appealed AJ-1's decision to the Commission's Office of Federal Operations (OFO). On December 20, 2012, the OFO found that AJ-1 erred when he issued a decision without a hearing noting that there was a genuine issue as to whether Complainant would pose a direct threat to safety because the Agency failed to conduct an individualized assessment of the alleged risk posed by Complainant and, instead, applied a blanket medical qualification. The OFO remanded the complaint for a hearing on the sole issue of whether Complainant would pose a direct threat to safety. The AJ was assigned to the complaint. Both parties submitted motions for summary judgment. On October 22, 2014, the AJ issued a decision granting Complainant's motion for summary judgment, and denying the Agency's motion for summary judgment. As an initial matter, the AJ found that there were no genuine issues of material fact. In regards to the issue of whether the Agency wrongfully determined that Complainant posed a direct threat to safety when it medically disqualified her from a position as an ATC, the AJ found that the Agency did not meet its burden under the direct threat standard as required by the Rehabilitation Act. The AJ found that the Agency based its decision on only one medical examination, and that it did not conduct an appropriate assessment that closely evaluated Complainant's prior experiences to determine if she had the ability to safely perform the job in question or, if her past experiences were insufficient, that provided Complainant with an opportunity to demonstrate how she could safely perform the essential functions of the job. Accordingly, the AJ found that the Agency violated the Rehabilitation Act when it failed to demonstrate that Complainant posed a direct threat to safety because it did not conduct an individualized assessment. The AJ ordered the parties to submit evidence and arguments on compensatory damages and attorneys' fees. On July 24, 2015, Complainant submitted a Motion for Pecuniary and Non-pecuniary damages requesting $24,914.20 in pecuniary damages, and $243,000 in non-pecuniary damages. As part of her submission, Complainant provided a video recording of her testimony, in addition to a transcript of her testimony. On August 14, 2015, the Agency filed a Response in Opposition to Complainant's Motion for Damages and Motion to Strike Video Deposition; Complainant submitted a Reply to the Agency's opposition on August 19, 2015. On October 30, 2015, Complainant submitted a Petition for Attorneys' fees and costs. Complainant requested $122,587.50 in attorneys' fees and $3,879.53 in costs. On November 13, 2015, the Agency filed its Response to Complainant's Petition for Fees and Costs requesting that the attorneys' fees be reduced because (1) the facts in the case were straightforward and uncomplicated, no depositions were conducted, and no hearing was held; (2) the billing for supervisory review was redundant and unnecessary; and (3) adequate representation was available in Complainant's local area, and so it was unnecessary to retain a law firm in Washington, D.C. Complainant filed a reply on November 18, 2015. On December 7, 2015, the AJ issued a decision and ordered the following relief: 1. Non-pecuniary compensatory damages in the amount of $50,000 within sixty days the decision becomes final; 2. Attorney's fees and costs in the amount of $88,527.03; 3. The Agency was ordered to conduct an individualized assessment within sixty (60) days, or a mutually agreed to date, of the date of the decision. The assessment should determine Complainant's ability to perform the duties of an ATC; 4. If Complainant satisfied the individualized assessment for the position of an ATC, the Agency was ordered to reinstate her to the ATC position, or mutually agreed to comparable position, within thirty (30) days of her successful completion of the assessment with back pay, including benefits and interest, calculated from April 15, 2009; 5. If Complainant satisfied the individualized assessment for the position of an ATC, the Agency was ordered to enroll her into the Academy for appropriate training as soon as the next earliest enrollment from the date of her successful completion of the assessment. 6. The Agency shall post a notice that it was found to have discriminated against an employee, as discussed above. On January 4, 2016, the Agency offered Complainant an individualized assessment, in the form of enrollment into the ATC training academy. Complainant did not accept the Agency's offer and disagreed that attending the training academy was an appropriate individualized assessment.2 On January 28, 2016, the Agency issued a final order adopting the AJ's findings and fully implementing the relief. On February 18, 2016, Complainant filed the instant appeal on the award of damages and attorneys' fees. She requested an extension to submit a brief in support of her appeal, and submitted her brief on April 22, 2016. The Agency submitted its Response to Complainant's Brief on June 1, 2016, after obtaining an extension to file its brief. On March 7, 2016, Complainant filed what was described as a Petition for Enforcement of the AJ's December 5, 2015, order alleging that the Agency had not complied with the AJ's order that it conduct an individualized assessment. On May 5, 2016, the Agency submitted a response to Complainant's petition. On April 22, 2016, Complainant filed a Motion for Sanctions with the Commission regarding the Agency's failure to produce a full and complete complaint file, per the Commission's March 4, 2016, acknowledgement letter requesting the complaint file. On May 12, 2016, the Agency filed an opposition to the motion for sanctions. CONTENTIONS ON APPEAL On appeal, Complainant argues that: 1. The AJ erred when she awarded only $50,000 in non-pecuniary damages, and denied her request for pecuniary damages; 2. The AJ erred when she made the award of back pay contingent upon her completing her individualized assessment; 3. The AJ erred when she denied her a gross upfront payment to offset the tax consequences of a lump sum back payment and; 4. The AJ erred when she reduced the attorneys' fees award by one-third. Complainant argues that the AJ erred when she failed to hold the Agency fully liable for the damages resulting from the Agency's discriminatory conduct of rescinding the offered ATC position, and instead, only held the Agency accountable for the harm stemming from its failure to perform an individualized assessment. Complainant alleges that the Agency is liable for its medical disqualification and its contemporaneous and inextricably intertwined rescission of the ATC position. Additionally, Complainant argues that the AJ erred when she held that there was no nexus between the pecuniary damages she sought and the Agency's discrimination. Complainant also argues that the AJ erred when excluding Complainant's video testimony because the AJ did not identify any legal authority that limits this type of evidence. Complainant also maintained that the Agency has failed to follow the AJ's order to conduct an individualized assessment because the offer to send her to training was not an individualized assessment; and that the Agency should be sanctioned for refusing to produce the complete complaint file. In response to Complainant's appeal, the Agency argues that: the AJ awarded an appropriate amount of compensatory damages; the AJ did not err in making back pay contingent upon an individualized assessment; the AJ's reduction of requested attorney's fees should not be disturbed; and Complainant's video testimony was properly stricken by the AJ. Additionally, in regards to the AJ's order to conduct an individualized assessment, the Agency argues that it has complied because it offered Complainant the opportunity to attend the training academy, as the individualized assessment. The Agency also responded that it should not be sanctioned because it has made a good faith effort to produce the complaint file. STANDARD OF REVIEW In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law"). ANALYSIS AND FINDINGS At the outset, we note that neither party challenges the AJ's issuance of a decision without a hearing or the finding of discrimination. Therefore, this appeal is limited to issues regarding the relief ordered by the AJ and adopted by the Agency in its final order. At the outset, we note, in regards to the AJ's decision to exclude Complainant's video testimony, that AJs have broad discretion in the conduct of hearings and related proceedings, including discovery, and the determination of whether to admit evidence, or to permit or to compel the testimony of witnesses. See 29 C.F.R. § 1614.109. We find that the AJ did not abuse her discretion in deciding to not allow Complainant's video testimony because she informed that parties that they could submit "written" relief and responses. Complainant submitted a written statement, which she stated contains the identical information as set forth in the video testimony. There is no question that the AJ considered Complainant's written submissions. Accordingly, we find that the AJ did not abuse her discretion nor err when she excluding Complainant's video testimony. Although Complainant characterized her submission as being a Petition for Enforcement, pursuant to 29 C.F.R. § 1614.503(a), we find that it is more appropriately defined as an appeal of the Agency's final order, pursuant to 29 CFR 1614.401(e). We will address the concerns raised Complainant below. Complainant requests that the Commission order the Agency to conduct the individualized assessment, and pay the undisputed portions of the non-pecuniary compensatory damages and attorneys' fees and costs. In regards to the individualized assessment, Complainant argues that the Agency's offer to send her to the training does not comport with the AJ's order of an individualized assessment. The Agency offered Complainant the opportunity to attend the thirteen week training class as the individualized assessment, stating that there was no medical exam that it could reply upon to determine if Complainant could perform the essential functions of the job. Complainant countered that she believed that an individualized assessment would be a medical assessment that would last approximately one day. Additionally, Complainant stated that the training academy goes far beyond a "mere assessment of [Complainant's] physical ability to perform ATC job duties." The Agency argues that it did not fail to comply with the AJ's order because it offered Complainant an individualized assessment. The Agency stated that the only way it can determine if Complainant can safely perform the essential functions of an ATC position is to have Complainant use the actual equipment the ATCs use and that Complainant will need to be taught how to use the equipment at the training academy. Additionally, the Agency explained that, once Complainant filed her appeal on February 18, 2016, it suspended its processing of the AJ's decision, in order to wait for the OFO's decision on the appeal outlining the Agency's obligations. While we note that there is a disagreement between the parties regarding what constitutes an individualized assessment, we will not substitute our judgment regarding what an individualized assessment should entail. We do note, however, that in Nathan v. Department of Justice (Federal Bureau of Investigation), EEOC Appeal No. 0720070014 (July 19, 2013), the Commission, in a situation similar to the instant case, found that the Agency discriminated against the complainant when it rescinded his job offer without conducting an individualized assessment to determine if he could safely perform the functions of the offered position. In Nathan, the Commission found that the more appropriate remedy, among other things, was to simply reinstate the complainant's conditional offer of employment subject only to the normal pre-employment perquisites, e.g., a background investigation in that case. Here, we find that the AJ should not have ordered the Agency to conduct an individual assessment of Complainant, but should have simply directed the Agency to reinstate Complainant's conditional offer of employment from the point that it was withdrawn. We will modify the Agency's final order below, accordingly. Motion for Sanctions The Commission has consistently exercised its inherent authority to enforce its 29 C.F.R. Part 1614 regulations by ordering sanctions in response to various types of violations. See Complainant v. Dep't of Energy, EEOC Appeal No. 0120113823 (Nov. 17, 2015) (sanction warranted where agency failed to submit hearing transcripts on appeal); Coley v. Dep't of the Air Force, EEOC Appeal No. 0120110789 (Sept. 24, 2013) (sanction appropriate where agency failed to provide copy of hearing record, including hearing transcripts). Our sanctions serve a dual purpose. On the one hand, they aim to deter the underlying conduct of the non-complying party and prevent similar misconduct in the future. Barbour v. U.S. Postal Serv., EEOC 07A30133 (June 16, 2005). On the other hand, they are corrective and provide equitable remedies to the opposing party. Given these dual purposes, sanctions must be tailored to each situation by applying the least severe sanction necessary to respond to a party's failure to show good cause for its actions and to equitably remedy the opposing party. Royal v. Dep't of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009). Several factors are considered in tailoring a sanction and determining if a particular sanction is warranted: 1) the extent and nature of the non-compliance, and the justification presented by the non-complying party; 2) the prejudicial effect of the non-compliance on the opposing party; 3) the consequences resulting from the delay in justice; and 4) the effect on the integrity of the EEO process. Gray v. Dep't of Defense, EEOC Appeal No. 07A50030 (Mar. 1, 2007). We note that our regulations require agency action in a timely manner at many points in the EEO process. Tammy S. v. Dep't of Defense, EEOC Appeal No. 0120084008 (June 6, 2014). Compliance with these timeframes is not optional; as the Commission stated in Royal, "the Commission has the inherent power to protect its administrative process from abuse by either party and must insure that agencies, as well as complainants, abide by its regulations." The Commission also found that, "[g]iven the length of time that the processing of a federal sector EEO complaint can take, any delays past the time frames in the regulations can impact the outcome of complainant's claims." Id. In her motion for sanctions alleging that the Agency did not produce a complete complaint file, Complainant seeks an adverse inference against the Agency in all matters where it failed to provide the Commission with necessary evidence in regards to her claims for compensatory damages, her fee petition, and back pay. She also requests additional fees related to the instant appeal and her motion for sanctions. Complainant notes that the Agency provided an incomplete file on March 4, 2016; upon receipt, she notified the Agency that the file was deficient. On March 21, 2016, the Agency uploaded a revised file and attributed the submission of the earlier incomplete file to "administrative oversight." Complainant alleges that the revised version was also deficient and suggests bad faith on the Agency's part. Complainant argues that the file omitted many significant pleadings that she submitted, which she maintains grossly misrepresented the amount of work reflected in the attorneys' hours claimed. In response to Complainant's allegations, the Agency states that it produced the hearing record as it was received by the AJ on March 3, 2016. After receiving notice of the record's deficiencies, the Agency uploaded a revised file on March 21, 2016. Additionally, the Agency states that Complainant was not prejudiced because she already had the documents in her possession, nor has there been an undue delay in justice. The Agency further notes that in the cases Complainant cites, the Commission had requested additional documentation from the agencies, who refused to comply, which is not the case here. In this case, we find that the Agency did not act in a manner that warrants sanctions. On February 24, 2016, the Agency learned of Complainant's appeal and uploaded the hearing file it had received from the AJ on March 3, 2016, which was before the Commission's March 4, 2016, acknowledgement letter instructing the Agency to produce the complaint file. Once the Agency was informed that the file was incomplete, it uploaded an additional file on March 21, 2016, which was within the 30 day timeframe of the Commission's instructions to produce the file. While Complainant alleges that the Agency should be sanctioned for its repeated refusal to produce a complete file resulting in prejudice to Complainant, we find there is no evidence showing any refusal on the Agency's part to provide the file. Rather, the record shows that the Agency uploaded what it thought was the complete file, and once it learned of the error, acted in a timely manner to upload additional documents. Additionally, while Complainant alleges that the Agency intentionally omitted documents from the file, she has not shown how she was prejudiced, beyond speculating that the Agency's "bad faith" will "poison" the start of Complainant's appeal. Accordingly, we deny Complainant's Motion for Sanctions because we find that the Agency's actions did not warrant the sanction of an adverse inference with respect to Complainant's request for compensatory damages, attorneys' fees, and back pay. Back Pay On appeal, Complainant argues that her back pay entitlement should not have been made contingent upon a current individualized assessment. She alleges that an individualized assessment is only relevant as to the issue of whether she can serve in the position of an ATC going forward. Complainant alleges that she is entitled to back pay because she was subjected to a discriminatory rescission of her conditional offer of employment as a result of the Agency's failure to show that her disability posed a direct threat to safety. Additionally, Complainant argues that the AJ erred when only ordering back pay from April 15, 2009. Complainant alleges that the back-pay calculation should be taken from the date when she was deemed medically disqualified, which was May 28, 2008. Alternatively, Complainant requests that the back pay start on the date that she was scheduled to begin the ATC Academy in July 2008. The Agency argues that there is a difference between a non-selection based on discrimination -- where but for the discrimination, Complainant would have been employed - and the Agency's failure to perform an individualized assessment, which may or may not have led to Complainant's employment as an ATC. A review of the record, however, indicates that the finding of discrimination was based on the Agency's failure to provide a reasonable accommodation when it did not grant Complainant a waiver of the vision requirement, after it failed to conduct an individualized assessment of Complainant's ability to perform the essential functions of the ATC position. Therefore, we find that the Agency's action of rescinding the ATC job offer was based on its discriminatory act of failing to provide a reasonable accommodation after it failed to conduct an individualized assessment. Although we cannot know if Complainant would have passed the individualized assessment at the time, the fact that the Agency did not conduct an individualized assessment directly led to Complainant's job offer being rescinded. As we noted above, however, in accordance with our Nathan decision, Complainant will not be required to undergo an individual assessment. Therefore, her entitlement to back pay will not be contingent upon successfully completing said assessment. The Agency will pay Complainant back pay in accordance with the Order below. Compensatory Damages Compensatory damages may be awarded for past pecuniary losses, future pecuniary losses, and non-pecuniary losses which are directly or proximately caused by the agency's discriminatory conduct. Enforcement Guidance: Compensatory and Punitive Damages Available under Section 102 of the Civil Rights Act of 1991 (Guidance), EEOC Notice No. 915.002, at 8 (July 14, 1992). Pecuniary Damages According to our Guidance, "[p]ecuniary losses include, for example, moving expenses, job search expenses, medical expenses, psychiatric expenses, physical therapy expenses, and other quantifiable out-of-pocket expenses that are incurred as a result of the discriminatory conduct." EEOC Notice No. N 915.002 , at 10. The employee, to recover damages, must prove that the employer's discriminatory act or conduct was the cause of the loss. Id. The critical question is whether the employee incurred the pecuniary losses as a result of the employer's discriminatory action or conduct. Id. On appeal, Complainant argues that the AJ ignored facts and made errors of law when she denied her pecuniary damages claim. Complainant alleges that she is entitled to an additional $22,564.20 in pecuniary damages for college tuition and $2,350 for counseling sessions. Complainant stated that she decided in high school to become an ATC because of her family's legacy; her grandfather, mother, and step-father all worked as ATCs and she was comfortable in the ATC community. Complainant alleges that in order to find work that would allow her to make a salary close to that of an ATC, she had to go to college. Therefore, Complainant argues that she should be reimbursed for her tuition costs because she was forced to go to college because she had no marketable skills, other than her ATC skills. Pecuniary damages are only appropriate if they are directly or proximately caused by the Agency's discrimination. In Complainant's case, we find that Complainant did not persuasively establish that the Agency's discriminatory actions were the cause of the loss. Contrary to Complainant's assertions, she did not have to go to college because of the Agency's conduct. She chose to go because, according to her, "she had no marketable skills." For her, going to college presented the best option, but she cannot establish that her going was directly or proximately caused by the Agency's discriminatory actions or conduct as our Guidance requires. Accordingly, we affirm the AJ's decision not to award pecuniary damages for Complainant's college tuition costs. In regards to counseling, Complainant stated that she sought couples counseling due to problems she experienced with her then-boyfriend and individual counseling for her anxiety, self-confidence, and anger issues. Complainant stated that she paid between $50-$100 per session, for a total of $2,350 for 33 sessions between June 2013 and January 2015. The Agency argues that Complainant only provided a few receipts for her medical appointments and that any expenses should only be considered after successfully completing the individualized assessment, and only for those for which she can provide receipts. At the outset, we note that even though the Agency is no longer required to conduct an individualized assessment in this matter, we find it important to address the Agency's erroneous contention that Complainant would only have been entitled to compensatory damages in this situation if she had successfully completed the individualized assessment. On the contrary, we find that Complainant's entitlement to said damages would have been appropriate if they were directly or proximately caused by the Agency's discrimination. Her subsequent performance on the individualized assessment would not have been relevant. As discussed below, we find that Complainant is not entitled to compensatory damages for her counseling sessions for other reasons, but any entitlement to compensatory damages should never have been made contingent upon a successful completion of the individualized assessment. In regards to the counseling sessions, we note that Complainant provided a statement from her therapist (T1), who stated that he met with Complainant and her then-boyfriend because they were "trying to determine whether or not to resume or continue the relationship" and that their "paramount concern" were their finances. While we note that Complainant alleges that the Agency's actions contributed to her relationship problems, T1 stated that Complainant mentioned that she was experiencing a significant amount of stress related to "the court case involving the EEOC and the [Agency]" during their session on September 26, 2013, which was Complainant's eleventh session with T1. We find that T1's statement does not reasonably support Complainant's assertion that she needed to attend counseling due to the Agency's discriminatory actions because she did not discuss the Agency's actions until approximately three months after the sessions began, despite meeting with T1 on a weekly basis. Additionally, we note that compensatory damages are not available for stress from pursuing an EEO complaint. See Appleby v. Dep't of the Army, EEOC Appeal No. 01933897 (Mar. 4, 1994). Accordingly, we affirm the AJ's decision not to award pecuniary damages for Complainant's counseling sessions. Non-Pecuniary Damages The amount of an award of compensatory damages is based on the following factors: (1) severity of the harm; (2) duration of the harm; and (3) extent to which the harm was caused by discriminatory conduct. Complainant v. Dep't of the Treasury, EEOC Appeal No. 0120123017 (Apr. 24, 2015); Rivera v. Dep't of the Navy, EEOC Appeal No. 01934157 (July 22, 1994), req. for recon. denied, EEOC Request No. 05940927 (Dec. 11, 1995); EEOC's Guidance on Compensatory Damages, at 11-12, 14. The reasonableness of an amount of compensatory damages is measured by whether the award is "monstrously excessive" and consistent with awards in similar cases. Ward-Jenkins v. Dep't of the Interior, EEOC Appeal No. 01961483 (Mar. 4, 1999) (citing Cygnar v. City of Chicago, 865 F.2d 848 (7th Cir. 1989)). Objective evidence of compensatory damages can include statements from the complainant concerning her emotional pain or suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, injury to character or reputation, injury to credit standing, loss of health, and any other non-pecuniary losses that are incurred as a result of the discriminatory conduct. Statements from others, including family members, friends, health care providers, or other counselors (including clergy) could address the outward manifestations or physical consequences of emotional distress, including sleeplessness, anxiety, stress, depression, marital strain, humiliation, emotional distress, loss of self-esteem, excessive fatigue, or a nervous breakdown. Lawrence v. U.S. Postal Serv., EEOC Appeal No. 01952288 (Apr. 18, 1996) (citing Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993). Evidence from a health care provider or other expert is not a mandatory prerequisite for recovery of compensatory damages for emotional harm. Sinnott v. Dep't of Defense, EEOC Appeal No. 01952872 (Sept. 19, 1996); Carpenter v. Dep't of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995). A complainant's own testimony, along with the circumstances of a particular case, can suffice to sustain her burden in this regard. Courts have also held that "expert testimony ordinarily is not required to ground money damages for mental anguish or emotional distress." Sanchez v. Puerto Rico Oil Co., 37 F.3d 712, 724 (1st Cir. 1994), citing Wulf v. City of Wichita, 883 F.2d 842, 875 (10th Cir. 1989); Hicks v. U.S. Postal Serv., EEOC Appeal No. 07A10020 (Sept 26, 2003). The more inherently degrading or humiliating the agency's action is, the more reasonable it is to infer that a person would suffer humiliation or distress from that action. In determining whether the amount of the award granted in this case was reasonable, we are guided by the principle that a compensatory damages award is limited to the amounts necessary to compensate Complainant for the actual harm caused by the agency's discriminatory action. In the instant appeal, the AJ awarded non-pecuniary damages in the amount of $50,000. In granting the award, the AJ noted that she considered the nature and severity of the Agency's discrimination, in addition to the nature, duration, and severity of Complainant's pain and suffering. On appeal, Complainant argues that the AJ ignored facts and made errors of law when she determined that Complainant was only entitled to 20% of her non-pecuniary damages. Complainant provided testimonial evidence relating the extent, nature, severity, and duration of the harm she suffered due to the Agency's discrimination. Complainant states that she suffered severe, long-term emotional, social, and financial hardship, including loss of enjoyment of life, loss of sense of purpose, and damage to her relationships over seven years. Complainant argues that the AJ erred when asserting that Complainant's case was dissimilar to cases involving discriminatory non-selections, and that she is entitled to $243,000 in non-pecuniary damages. The Agency counters that the AJ awarded an appropriate amount of non-pecuniary damages because Complainant is wrong in seeking damages for "each and every event" regardless of whether these events are related to the Agency's failure to conduct an individualized assessment. Additionally, the Agency argues that in Katz v. U.S. Department of State and Agency for International Development, EEOC Appeal No. 0720060024 (March 26, 2009), the AJ did not award non-pecuniary damages for the time the case was in the EEOC system. Based on the record, we disagree with the AJ that Complainant was only entitled to an award of $50,000 in non-pecuniary damages. According to the AJ, Complainant provided statements from herself, friends, and family members concerning how the Agency's discrimination affected her physically, emotionally and financially; how it impacted her socially; and how it affected her interest in figure skating, which was a passion for her. As the AJ noted, Complainant stated that after the Agency revoked her job offer, she felt "derailed." Her life became characterized by "professional insecurity and financial instability." She became distant from her family and suffered from personal anxiety. According to the AJ decision, the Agency's actions "diminished" Complainant's enjoyment of life. These statements indicate that the duration of the harm was over seven years. In arriving at the $50,000 amount, the AJ found that, unlike cases were higher amounts were awarded; this case did not involve a discriminatory nonselection. We disagree with that assessment. Again, as we found in Nathan, the Agency discriminated against Complainant when it rescinded her job offer without conducting an individualized assessment to determine if she could safely perform the essential functions of the offered position. The denial of a reasonable accommodation resulted in Complainant not receiving a position for which she had been conditionally selected. As discussed above, non-pecuniary damages are not available for the stress resulting from pursuing an EEO complaint. Complainant, however, is entitled to compensatory damages for symptoms related to the underlying discrimination that persisted while her complaint was being litigated. Taking into account factors such as the nature, severity, and duration of the harm done to Complainant as a result of the Agency's actions, we find that a more appropriate award would have been $150,000. The award is not "monstrously excessive" standing alone and is not the "product of passion or prejudice," and is consistent with the amount awarded in similar cases. See Franklin v. U.S. Postal Serv., EEOC Appeal No. 07A00025 (Jan. 19, 2001) ($150,000 in non-pecuniary compensatory damages awarded where as a result of the agency's actions, complainant experienced extensive symptoms of emotional distress, resulting in changes in complainant's personality, the ending of his marriage, severe strains in his relationships with those close to him, including his children, and diminished enjoyment of life). See, e.g., Booker v. Department of Defense, EEOC Appeal No. 07A00023 (August 10, 2000) ($150,000 in non-pecuniary damages awarded where as a result of agency's actions, complainant experienced severe depression). Lump-Payment - Tax Offset 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. Dep't of Navy. EEOC Appeal Nos. 01982628 and 01990455 (Aug. 22, 2001): Goetze v. Dep't of Navy. EEOC Appeal No. 01991530 (Aug. 22, 2001); Holler v. Dep't of the Navy, EEOC Appeal Nos. 01982627 and 01990407 (Aug. 22, 2001). In the case of a lump sum back pay award, individuals are entitled to compensation for the extra tax liability they are required to pay as a result of receiving a lump sum award, as opposed to the actual amount they would have had to pay if they had received their pay over a period of time, usually several years. It is the receipt of the pay in one lump sum that causes the extra tax liability, not the back pay award itself. The Commission has found that a complainant bears the burden to prove the amount to which she claimed entitlement and courts have demanded probative calculations by complainants. See Cottrell v. Dep't of Transportation, EEOC Petition No. 04A30015 (Oct. 12, 2004). Complainant alleges that the AJ erred when she ignored Complainant's assertion that she is entitled to an additional lump sum payment to offset any tax consequence that she will face in the year that she receives her back pay and damages. We agree that Complainant is entitled to additional compensation to offset her tax consequences for any back pay award. Complainant and the Agency must cooperate to calculate her back pay and the appropriate additional amount, in accordance with the Order below. With regard to Complainant's claim that she is entitled to an award to cover her tax liability for her compensatory damages, we note that the Commission has not recognized any entitlement to awards to cover tax liability for compensatory damages. See Williams v. Dep't of Veterans Affairs, EEOC Petition No. 04A40047 (June 30, 2005). Accordingly, her request for additional money to offset her tax consequences of her compensatory damages is denied. Attorneys' Fees By federal regulation, an agency is required to award attorney's fees and costs for the successful processing of an EEO complaint in accordance with existing case law and regulatory standards. EEOC Regulation 29 C.F.R. § 1614.501(e)(1)(ii). To determine the proper amount of the fee, a lodestar amount is reached by calculating the number of hours reasonably expended by the attorney on the complaint multiplied by a reasonable hourly rate. Blum v. Stenson, 465 U.S. 886 (1984); Hensley v. Eckerhart, 461 U.S. 424 (1983). There is a strong presumption that the number of hours reasonably expended multiplied by a reasonable hourly rate, the lodestar, represents a reasonable fee, but 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). The circumstances under which the lodestar may be adjusted are extremely limited, and are set forth in EEO MD-110, Ch. 11 § VI.F. If the AJ or agency determines that an adjustment to the lodestar is appropriate, the AJ or agency may calculate the adjustment by either adding or subtracting a lump sum from the lodestar figure or by adding or subtracting a percentage of the lodestar. Id. The AJ or agency has discretion to determine the amount of the adjustment. Id. Normally, the adjustment should be no more or less than 75% of the lodestar figure. Id. The AJ or agency must provide a detailed written explanation of why the adjustment was made, and what factors supported the adjustment. Coutin v. Young & Rubicam Puerto Rico, 124 F.3d at 340. Complainant argues that the AJ erred when reducing the attorneys' fees by one-third because: 1. The AJ failed to identify an hourly rate; 2. The AJ erroneously found that Complainant failed to succeed on all claims; and 3. The reduction was for "no comprehensible or articulated reason." Complainant further argues that it was reasonable to hire a law firm in the Washington, D.C. area, rather than in Texas due to its specialized experience in federal sector employment law. Complainant also argues that the AJ erred when she found the issue was not complex, and found the hours claimed were not reasonable. She asserts that the AJ credited the Agency's arguments, which are not supported by evidence or specifics. Complainant also argues that the AJ erred when she did not consider a supplemental fee request, and has on appeal submitted a fee petition requesting an additional $61,140.20 in attorneys' fees. We note, however, that Complainant's Reply in Support of Petition for Attorneys' Fees and Costs submitted on November 18, 2015, revised her request down to $122,497.50, with a supplemental request of $5,368 in attorneys' fees for work performed from October 31, 2015 through November 18, 2015. We find that the AJ did not err because the record does not show that a supplemental fee petition for an additional $61,140.20 was ever before the AJ prior to her issuing her decision on December 7, 2015. However, we note that the AJ did not specifically address the additional $5,368 requested in the reply. As regards to the original fee petition, we find that the AJ erred in finding that Complainant did not prevail on the issue of her non-selection, as discussed above. We also find that the AJ erred when she did not make a determination on Complainant's choice of a Washington, D.C. law firm; when she failed to identify the reasonable hourly rates; and when she failed to address the number of hours reasonably expended by the attorneys on the complaint. With regards to Complainant's choice of law firm, we find that it was appropriate for her to pick a Washington, D. C. firm because Complainant's complaint was originally processed by the Commission's Washington, D.C. Field Office. We also find that the rates identified in the fee petition are reasonable, based on the Laffey matrix: Attorney 1 (20+ years of experience) at $520 per hour; Attorney 2 (5-8 years of experience) at $300 per hour for June 2012 through May 2014, and $370 for June 2014, through May 2016; Attorney 3 (1-3 years of experience) and Attorney 4 (2-3 years of experience) at $255 per hour; and the Law Clerk at $150 per hour. In regards to reasonable hours expended for this case, the Agency argues that the reduction in attorneys' fees should not be disturbed because there was excessive billing in Complainant's fee petition. Specifically, the Agency argues that Complainant's attorneys billed for excessive hours for Attorney 1; duplicative billing for multiple attorneys attending conferences; excessive hours for drafting motions; and billing for mundane and routine tasks. For example, the Agency notes that there were 52 instances where Attorney 1 conferred with other attorneys and all the attorneys billed hours for the same conferences; Attorney 1 billed 1.9 hours for reviewing an email consisting of two lines of text and sending one email assigning a paralegal to conduct legal research; Attorney 1 spent 1.4 hours to send an email to Complainant to provide a status and strategy update; and Attorney 2 billed .3 hours for preparing a Notice of Representation, which, according to the Agency, is a simple form, at $90.3 The Agency also argues that it was unreasonable to bill over 47 hours to draft the brief on compensatory damages, and over 40 hours for the Motion for Summary Judgment. While Complainant may not agree with the AJ's determination, we find that she did articulate a comprehensible reason for her decision to reduce attorneys' fees. The AJ noted that she considered the limited amount of discovery, depositions, and litigation necessary for this case. Additionally, the AJ found the Agency's arguments regarding excessive billing persuasive. While Complainant argues that the Agency did not provide specific examples in support of its argument to reduce attorneys' fees, we find that the Agency highlighted what it considered to be specific examples of excessive billing in Complainant's fee petition. We find that some of the tasks billed for the law clerk were excessive and for clerical duties, such as billing .4 hours to draft and send a notice of change of address; and 2.4 hours for scanning and organizing files and binders. The Commission has held that clerical expenses are generally viewed as part of the attorney's overhead, and as such these expenses are not reimbursable. Cole v. United States Postal Service, EEOC Request No. 05910450 (August 5, 1991). All hours reasonably spent in processing the complaint are compensable, but the number of hours should not include excessive, redundant or otherwise unnecessary hours. EEO MD-110, at Ch. 11 § VI.F. In regards to the conferences billed for multiple attorneys, we find that it was reasonable for Attorney 1 to meet and discuss this case with the other attorneys working on this case. The fee petition shows that Attorney 1 conferred with the other attorneys over three years. In regards to the two emails sent by Attorney 1, we note that these emails are not in the record due to the nature of the communication and we therefore are unable to determine if the time spent was reasonable. As such, we will leave those charges undisturbed. Additionally, we find that he total hours billed for drafting the Motion for Summary Judgment and the brief for Compensatory Damages are reasonable. However, we find that Complainant is not entitled to attorneys' fees for an earlier, unsuccessful Motion for Sanctions or for clerical work. Upon reviewing Complainant's petition for attorneys' fees, we are excluding the following charges: 1. August 26, 2013: .30 hours for paralegal converting document into Word at $45.00; 2. May 29, 2013: .30 hours for Attorney 1 to review Motion for Sanctions at $156; 3. May 23, 2013: 2.10 hours for Attorney 2 to draft Motion for Sanctions at $630;4 4. May 28, 2013: 0.80 hours for Attorney 2 to draft Motion for Sanctions at $240; 5. May 29, 2013: 2.00 hours for Attorney 2 to draft Motion for Sanctions at $600; 6. June 28, 2013: 0.40 hours for Attorney 2 to review opposition of Motion for Sanctions at $120; 7. July 2, 2013: 1.70 hours for Attorney 2 to reply to opposition of Motion for Sanctions at $510; 8. June 18, 2013: 0.40 hours for Law Clerk to draft and send notice of change of address at $60; 9. July 17, 2013: 1.10 hours for Law Clerk to update and scan files at $165; and 10. July 18, 2013: 1.30 hours for Law Clerk to scan and organize binder at $195. In total, we find that the AJ erred by reducing the petition for attorney's' fees by more than $2,721. Accordingly, we modify the AJ's award of attorneys' fees to $119,776.50. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we MODIFY the Agency's final order implementing the AJ's decision with regards to Complainant's non-pecuniary compensatory damages, back pay, and attorneys' fees; and VACATE the order for an individualized assessment. ORDER The Agency shall take the following actions within the specified number of days of the date this decision becomes final: 1. Within fifteen days (15) calendar days, reinstate Complainant's conditional offer of employment as an ATC Specialist. Complainant will have thirty (30) calendar days from the date of the offer of reinstatement to accept or reject the Agency's offer. If she does not respond within thirty (30) calendar days, the Agency will consider her to have declined the Agency's the conditional offer of reinstatement as an ATC Specialist. If Complainant accepts the Agency's conditional offer of employment, the Agency will enroll Complainant into the next ATC training class. 2. Within sixty (60) calendar days, the Agency shall pay Complainant $150,000 for non-pecuniary compensatory damages. 3. Within sixty (60) calendar days, the Agency shall pay Complainant's attorney for attorneys' fees in the amount of $119,776.50. 4. Within one-hundred and twenty (120) calendar days, 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. Back pay and benefits shall be calculated from the start of the training class that Complainant would have attended in July 2008, up to the date on which Complainant enters on duty, or to the date on which she declines to enter on duty, whichever date is first. Complainant shall cooperate in the Agency's 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 back pay and/or benefits, the Agency shall issue a check to the Complainant for the undisputed amount. Complainant may petition the Commission for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer referenced in the statement entitled "Implementation of the Commission's Decision." 5. After the relevant back pay calculations have been made, the Agency shall request that Complainant submit her claim for compensation for all additional federal and state income tax liability. The Agency shall afford Complainant sixty (60) calendar days to submit her claim and supporting documents. The burden of proof to establish the amount of additional tax liability, if any, is on the Complainant. The calculation of additional tax liability must be based on the taxes Complainant would have paid had she received the back pay in the form of regular salary during the back pay period, versus the additional taxes she paid due to receiving the back pay lump sum award from 2008. Thereafter, the Agency shall issue a decision on this matter and any amount of proven additional tax liability within one hundred and twenty (120) calendar days of the date this decision becomes final in accordance with 29 C.F.R. § 1614.110(b). 6. Within one hundred and twenty (120) calendar days, the Agency shall provide EEO training on the topic of rights and responsibilities under the Rehabilitation Act to Agency officials identified as being involved in the reasonable accommodation and medical evaluation processes. The Agency shall take appropriate steps to ensure that like violations do not occur in the future. 7. Consider taking appropriate disciplinary action against the responsible management officials. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure dates. 8. Take any necessary precautions to ensure that Complainant is not subjected to retaliation for filing, prosecuting, and obtaining a favorable result on the instant complaint. To that end, the Agency shall, to the extent possible, maintain confidentiality with regard to these proceedings. 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. POSTING ORDER (G0914) The Agency is ordered to post at its Office of Aerospace Medicine in Washington, D.C. and the Aerospace Medical Certification Division in Oklahoma City, Oklahoma, copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0416) 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. The requests 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 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 _7/19/16_________________ 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 Complainant was also unable to fly due to her pregnancy until late spring or early summer of 2016. 3 We note that in her reply to the Agency's response to the fee petition, Complainant lowered this to 0.10 hours; however, she also altered the "revise entry of appearance" charge to "review documents from client" to bill for 0.40 hours. 4 The drafting of Motion for Sanctions is bundled with other tasks. Because it is impossible to discern how much time was spent on the Motion for Sanctions alone, we will exclude the entire time billed. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120161130