U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Harris K.,1 Complainant, v. Kirstjen M. Nielsen, Secretary, Department of Homeland Security, Agency. Appeal No. 0120180595 Agency No. HS-CBP-24830-2015 DECISION On November 27, 2017, 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 7, 2017, final decision concerning an equal employment opportunity (EEO) complaint claiming 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. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked as a Border Patrol Agent, for the U.S. Customs and Border Protection, Office of Border Patrol, located in Laredo, Texas. Believing that he was subjected to racial discrimination, Complainant filed a formal EEO complaint on November 26, 2015. Complainant alleged that the Agency created a hostile work environment when: 1. In February 2013, a former co-worker informed him that his co-workers shared racist views about him. 2. In June and July 2013, two co-workers (CW-1 and CW-2) posted racist comments and racial slurs, such as "I can't stand n-----s," during a Facebook [hereinafter "FB"] discussion among Border Patrol Agency's (BPAs) on their personal FB pages. 3. In July 2013, CW-2 sent him a text message on his mobile phone after Complainant posted that he was offended by a racist comment posted by CW-2 on his personal FB page. 4. In August 2013, CW-2 confronted Complainant at work and asked if he filed an EEO complaint against CW-2. 5. On February 23, 2015, during a discussion on a group FB page (FB Group Page) for Laredo Sector BPAs, a co-worker (CW-4) posted a comment referring to the President of the United States as "jungle bunny Obama." 6. In February or March 2015, during a discussion on the FB Group Page, another co-worker (CW-5) stated that "Obama is nothing but a house n----r" and "I can't stand n----rs." 7. On September 12 and 14, 2015, several coworkers (CW-6, CW-7, CW-8, CW-9, CW-10, CW-11) made racial slurs and derogatory and offensive posts about African-Americans on the Group FB page. 8. On October 28, 2015, a coworker (CW-12) posted on his personal FB page, "we have a snitch on our hands." 9. On March 24 and 29, 2016, a tire on his personal vehicle, which was parked near the workplace, was flattened.2 After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ).3 In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b) on August 3, 2017. The Agency concluded that Complainant provided sufficient evidence to prove he was subjected to a hostile work environment with respect to the offensive postings on the FB Group Page (claims (5) - (8)). According to the Agency's decision, the record contained "uncontroverted evidence that Complainant's BPAs posted highly charged, offensive comments about African-Americans on the FB Group Page" and that these comments unreasonably interfered with Complainant's work environment. Acknowledging that the actions took placed "outside the physical boundaries of the workplace," the Agency noted that the conduct nonetheless violated Agency policies which "clearly contemplate employment-related consequences for off-duty conduct." The Agency found that the BPAs conduct was intertwined with their identities as Agency employees, as evidenced by the name of the FB Group Page ("The Laredo Agents Choir Practice") and limiting membership to non-supervisory BPAs in the Laredo Sector. Given the nature of his BPA job, Complainant feared for his safety, unsure whether his co-workers would "have my back and provide assistance if/when required." With respect to Agency liability for the co-worker harassment experienced by Complainant, the Agency decision concluded that the Agency failed to take appropriate corrective measures and therefore was liable. The Agency was ordered to take the following actions: conduct remedial training regarding racial discrimination for all managers and BPAs within the Laredo Sector; remove access to the FB Group Page from all government-issued devices; issue an employee-wide message alerting employees of the Agency's awareness of the FB Group Page; and consider taking disciplinary action against the BPAs who posted the comments and the supervisors who failed to take appropriate action. Complainant was entitled to request compensatory damages and attorney fees from the Agency, and required to submit such requests to the Agency within thirty days. On August 28, 2017, Complainant provided to the Agency his Statement of Damages, including attorney's fees and costs. Complainant reasoned that the harassment so caused him to fear for his life and experience emotional stress if he continued to work for the Agency, that he was forced to leave his BPA position and find other employment. Complainant asserted that his relocation resulted in a decrease in income and retirement benefits. Specifically, Complainant calculated a loss of $487,500 in lost overtime and $445,250 in lost retirement contributions "over the course of his expected lifetime employment" (i.e. twenty-five years). Further, Complainant requested $55,000 for the "actual cost of move plus increase in monthly rent and cost of living" for moving from Laredo to the Washington, D.C. area. As for "pecuniary and other damages" Complainant sought $500,000. He describes "extreme stress and mental anguish", leading to his recent diagnosis of Type II Diabetes.4 Finally, Complainant requested $9,620 for attorney's fees and costs. On November 27, 2017, the Agency issued a decision awarding Complainant $40,000 in non-pecuniary compensatory damages and $3,250 in attorney's fees. The Agency reiterated that the finding of harassment was based upon claims (5) through (8), and not based upon some unalleged claim of constructive discharge or reassignment. The Agency therefore reasons that there was no basis to conclude Complainant's decision to relocate to the Washington, DC area (Virginia) was a reasonably foreseeable consequence of the hostile work environment. The Agency denied Complainant's request for $987,750 (lost overtime and lost retirement). Complainant's request for $150,000 to treat his Type II Diabetes was also denied. The Agency explained, there was no evidence establishing that Complainant's diabetes diagnosis was the result of the hostile work environment. The Agency reduced Complainant's request for $500,000 in non-pecuniary damages. The Agency found $40,000 to be consistent with amounts awarded in similar cases. Lastly, while the Agency agreed with the hourly rate for Complainant's attorney, it founded the time expended to be excessive. The number of hours was reduced to 10 hours, for a total of $3,250. Complainant filed the instant appeal. ANALYSIS AND FINDINGS Standard of Review As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (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"). Compensatory Damages When discrimination is found, an agency must provide a complainant with a remedy which 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 Serv., EEOC Appeal No. 01933395 (July 21, 1994). 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)(3). In West v. Gibson, 527 U.S. 212 (1999), the Supreme Court held that Congress afforded the Commission the authority to award compensatory damages in the administrative process. 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) To receive an award of compensatory damages, a complainant must demonstrate that he or she has been harmed as a result of 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), req. for reconsideration denied, EEOC Request No. 05940927 (Dec. 11, 1995); Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 (July 14, 1992), at 11-12, 14. Pecuniary Damages Pecuniary losses are out-of-pocket expenses incurred as a result of the agency'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 losses incurred prior to the resolution of a complaint through a finding of discrimination, or a voluntary settlement." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 11 § VII.B.2 (Aug. 5, 2015) (internal citations omitted). "In a claim for pecuniary compensatory damages, complainant must demonstrate, through appropriate evidence and documentation, the harm suffered as a result of the agency's discriminatory action. Objective evidence in support of a claim for pecuniary damages includes documentation showing actual out-of-pocket expenses with an explanation of the expenditure. The agency is only responsible for those damages that are clearly shown to be caused by the agency's discriminatory conduct. Id. To recover damages, the complainant must prove that the employer's discriminatory actions were the cause of the pecuniary loss." Id. (internal citations omitted). The enormous amount of pecuniary damages Complainant is seeking relates to his belief that he was constructively discharged. Complainant, through his attorney, argues on appeal that because he "raised the issue of constructive discharge in an email to the EEO Investigator," the claim of constructive discharge should have been considered by the Agency when determining the amount of pecuniary damages to award. The Commission disagrees. We acknowledge Complainant may have indeed mentioned the matter to an EEO Investigator. This matter, however, was not part of his formal complaint nor was it accepted for investigation. More importantly, these claims were not part of the Agency's finding of discrimination. In its decision, the Agency clearly stated that Complainant was subjected to a hostile work environment with respect to the FB Group Page posts ((claims (5) through (8)) only. The instant appeal challenges the Agency's determinations with respect to compensatory damages and attorney's fees, not the underlying findings of discrimination. Therefore, we find that any alleged losses related to Complainant's move to a new position in the Washington D.C. area (lost overtime, reduced retirement contributions, moving costs, and increased cost of living) were properly denied by the Agency as they are unrelated to the acts of harassment. In his August 28, 2017 request, Complainant also sought $150,000 in future pecuniary damages "to help with my treatment of Type II diabetes." In support, Complainant simply provides a laboratory result reflecting his diagnosis in June 2017. We note that the unlawful harassment occurred between February and October 2015, approximately two years earlier. Complainant argues that the stress he experienced from the hostile work environment caused him to "stress eat", which in turn resulted in his diabetes diagnosis. Complainant's assertion and diagnosis are insufficient to establish that the unlawful harassment, from the FB Group Page in 2015, proximately caused his medical condition, let alone support his claim for $150,000 for future treatment. The Agency properly excluded this amount from its award. Non-Pecuniary Damages A Complainant who establishes her claim of unlawful discrimination may receive compensatory damages for non-pecuniary losses (e.g. pain and suffering, mental anguish). 42 U.S.C. § 1981a (b)(3). For an employer with more than 500 employees, such as the Agency, the limit of liability for non-pecuniary damages is $300,000. While there are no definitive rules governing the amount of non-pecuniary damages to be awarded, non-pecuniary damages must be limited to the sums necessary to compensate the injured party for actual harm, even where the harm is intangible, and should take into account the severity of the harm and the length of time that the injured party has suffered the harm. Carter v. Duncan-Higgins, Ltd., 727 F.2d 1225 (D.C. Cir. 1984); Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995). The amount of the award of non-pecuniary compensatory damages should not be "monstrously excessive" standing alone, should not be the product of passion or prejudice, and should be consistent with the amount awarded in similar cases. See Cygnar v. City of Chicago, 865 F. 2d 827, 848 (7th Cir. 1989); EEOC v. AIC Security Investigations, Ltd., 823 F. Supp. 571, 574 (N.D. Ill. 1993). Evidence from a health care provider or other expert is not a prerequisite for recovery of compensatory damages for emotional harm. Lawrence v. U.S. Postal Service, EEOC Appeal No. 01952288 (Apr. 18, 1996) (citing, Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993)). Complainants own testimony, along with the circumstances of a particular case, can suffice to sustain her burden. Id. Objective evidence of compensatory damages can, for example, include statements from the complainant concerning his or her emotional pain or suffering, mental anguish, loss of enjoyment of life, injury to professional standing, injury to credit standing, loss of health, and any other nonpecuniary losses that are incurred as a result of the discriminatory conduct. Statements from others, including family members, friends, health care providers, 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. See 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). However, the absence of supporting evidence, may affect the amount of damages appropriate in specific cases. See Banks v. U.S. Postal Service, EEOC Appeal No. 07A20037 (September 29, 2003) (citing, Lawrence, EEOC Appeal No. 01952288). Here, Complainant argues he is entitled to $300,000 in non-pecuniary damages.5 As an initial matter, we note that on appeal Complainant asks that we contemplate the vandalism of his car (claim (9)), in determining a higher amount of non-pecuniary damages. The Commission reminds Complainant that claim (9) was not found to be part of his successful hostile work environment claim. Consequently, we shall not consider the incident in an award. Complainant asserts that due to the Agency's discrimination he suffered from depression and anxiety, isolated himself, had difficulties sleeping, experienced changes in appetite, suffered from increased stress levels, and fatigue. In support of this assertion, he provides letters from friends, his ex-wife, and his sisters. One individual, whom he befriended in February 2015, stated that Complainant expressed an inability to sleep, changes in appetite, fatigue and a depressed mood. A friend since college, described a May 2016 conversation with Complainant, which she found him to be "very distraught, disappointed, and depressed." Complainant's ex-wife said that he "expressed that he was afraid his colleagues would set him up to be harmed or willing not come to his aide if something happened." She explained that Complainant would seclude himself from people. Complainant's younger sister echoed these sentiments, noting that when she moved to Laredo to be with Complainant in April 2016, she found him "closed off socially" and often "locked in his room". The only medical document Complainant proffers is a "Mental Health Assessment" dated August 16, 2017. A review of the document, however, reflects it to be a summary of what Complainant reported to the facility rather than an assessment conducted by a medical practitioner. For example, the document states that Complainant "has scheduled to begin counseling . . . for what appears to be symptoms associated with PTSD . . ." (emphasis added). Based on Complainant's statement and those of his family and friends, the Commission determines that the award of $40,000 in non-pecuniary damages is consistent with the amounts awarded in similar cases. See, e.g., Wiggins v. Department of the Air Force, EEOC Appeal No. 07A10072 (July 23, 2002) ($40,000.00 in non-pecuniary damages where complainant was diagnosed with stress-related hair loss, and experienced depression, an upset stomach, and impaired relationship with her spouse for a period of 2 years); Garrett v. United States Postal Service, EEOC Appeal No. 07A30024 (February 25, 2004) ($35,000.00 in non-pecuniary damages where complainant experienced emotional distress, depression, anger, embarrassment, and humiliation, as well as headaches, and sleep difficulties, which were corroborated by a friend); Turner v. Department of Interior, EEOC Appeal No. 01956390 (April 27, 1998) ($40,000.00 in non-pecuniary damages awarded where the agency subjected complainant to sexual harassment and retaliation, which resulted in depression, anger, anxiety, frustration, sleeplessness, crying spells, loss of self-esteem and strained relationships). Further, this amount takes into account that, unlike cases where greater damages were awarded, complainant's injury did not render him totally incapacitated either for work or in his personal life. The award also meets the goals of not being motivated by passion or prejudice, not being "monstrously excessive" standing alone, and being consistent with the amounts awarded in similar cases. Attorneys Fees Title VII authorizes the award of reasonable attorney's fees, including for an attorney's processing of a compensatory damages claim. 29 C.F.R. § 1614.501(e). The fee award is ordinarily determined by multiplying a reasonable number of hours expended on the case by a reasonable hourly rate, also known as a "lodestar." See 29 C.F.R. § 1614.501(e)(2)(ii)(B); Bernard v. Dep't of Veterans Affairs, EEOC Appeal No. 01966861 (July 17, 1998). Complainant requested $9,620.00 in attorneys fees, 29.6 hours at a rate of $325 per hour. In its decision, while the Agency did not dispute the hourly rate, it did find the amount of time requested to be excessive. It reduced the number of hours to 10, awarding Complainant $3,250.00 in fees. Therefore, our analysis will be limited to the number of hours expended. In determining the number of hours expended the Commission recognizes that the attorney "is not required to record in great detail the manner in which each minute of his time was expended." Id. However, the attorney does have the burden of identifying the subject matters which he spent his time by submitting sufficiently detailed and contemporaneous time records to ensure that the time spent was accurately recorded. Id. Moreover, Complainant is only entitled to an award for time reasonably expended. It does not always follow that the amount of time actually expended is the amount of time reasonably expended. Elvin v. Dep't of Labor, EEOC Request No. 01943425 (Aug. 31, 1995). Counsel for the prevailing party should make a "good faith effort to exclude from a fee request hours that are excessive, redundant or otherwise unnecessary." See Bernard, EEOC Appeal No. 01966861. The "Invoice" submitted in support for the request for attorney's fees reflects work performed between August 5, 2017 and August 26, 2017. On appeal, Complainant6 contends that hours spent reviewing the case documents and performing legal research are reasonable given the duration of the case and the complexity of the issues. Complainant's attorney was not retained until August 2017 and needed to understand the details of a matter that had been pending since 2015. We find these 20.7 hours to be reasonable. However, the Invoice entry for 8.9 hours to prepare "Statement of Damages, Notice of Entrance of Appearance, Certificate of Service, and Attorney Affidavit" is excessive. The "Statement of Damages" is approximately one and half pages long, contains errors in wording, as well as inaccuracies in the law (i.e. failing to recognize that the limit of liability for non-pecuniary damages is $300,000). While Complainant's attorney may have actually spent almost 9 hours on this document, we do not find this to be reasonable. Consequently, we shall reduce the overall request for attorney's fees (29.6) by 5 hours, for a total of 23.6 hours. The Agency's award ($3,250.00) is hereby modified to $7,670.00. CONCLUSION Accordingly, the Commission hereby MODIFIES the Agency's decision, in part, and Order the Agency to award Complainant $7,670.00 in attorney's fees. ORDER Within thirty (30) days from the date this decision becomes final, the Agency shall pay Complainant $7,670.00 in attorney's fees. The Agency shall also submit a report of complaint, as provided in the statement entitled "Implementation of the Commission's Decision. 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. 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 April 24, 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 Complainant later clarified that this claim alone was based on reprisal for prior protected EEO activity. 3 Following Complainant's request for an agency decision, the Agency's Office for Civil Rights and Civil Liberties (CRCL) remanded the matter to Customs and Border Protection for a supplemental investigation. After receiving a copy of the Supplemental Investigation File, Complainant reiterated his request for an Agency decision. 4 In an attached document, Complainant appears to request an additional $150,000 "to help with my treatment for Type II Diabetes. He reasoned that the stress from the hostile work environment cause him to "stress eat" which resulted in his recent diagnosis of Type II diabetes. 55 We note that on appeal Complainant's attorney, acknowledging the $300,000 cap on compensatory damages, reduced their initial ($500,000) request accordingly. 6 On appeal Complainant is represented by a different attorney than the one who prepared his request for compensatory damages and performed the associated work that is the subject of the instant fee request. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120180595