U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Margaret L.,1 Complainant,2 v. Julian Castro, Secretary, Department of Housing and Urban Development, Agency. Appeal Nos. 0120150433, 0120160089 Petition No. 0420150018 (on Appeal Nos. 0120111827 & 0120113765) Agency Nos. PI-03-02 and PI-04-08 DECISION On July 24, 2015, the Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition for enforcement to examine the enforcement of an Order set forth in Complainant v. Department of Housing and Urban Development, Appeal Nos. 0120111827 and 0120113765 (July 16, 2014). The Commission accepts this petition for enforcement pursuant to 29 C.F.R. § 1614.503. Petitioner alleged that the Agency failed to fully comply with the Commission's orders. In addition, Complainant filed two additional appeals with the Commission. On November 12, 2014, Complainant, through her attorney (Attorney) filed an appeal following the Agency's "Final Order" dated October 22, 2014, in which the Agency indicated that it was implementing the Commission's decision in Appeal Nos. 0120111827 and 0120113765. The Attorney was concerned about the Agency's order stating shorter time frames for Complainant to provide evidence in support of her claim for compensatory damages than those provided by the Commission in its orders. Subsequently, the Attorney filed an appeal following the Agency's final decision dated September 15, 2015, regarding compensatory damages and fees and costs to the Attorney. The Commission accepts these appeals pursuant to 29 C.F.R. § 1614.401. Due to their related nature, all these matters are consolidated for adjudication into this single decision. See 29 C.F.R. § 1614.606. BACKGROUND At the time of events giving rise to these matters, Complainant worked as a Program Analyst, GS-14, at the Agency's Office of Policy, Program and Legislative Initiatives in the Office of Public and Indian Housing in Washington, D.C. On January 2, 2003, Complainant filed a formal complaint, identified as Agency No. PI-03-02, alleging that the Agency discriminated against her on the bases of disability and reprisal for prior protected EEO activity when: (1) on September 25, 2002, Complainant was issued a progress review that she perceived as unfair, and (2) was provided with negative comments by management in November 2002, about a late report. On August 17, 2004, Complainant filed a second EEO complaint, identified as Agency No. PI-04-08, alleging discrimination on the bases of age (64), disability and reprisal for prior EEO complaints concerning: 2. the denial or delay in approving leave requests and/or requiring justification for leave requests; 3. complaints about Complainant's work performance by her supervisor; 4. a rating of "fully successful" received on March 28, 2004; 5. on April 13, 2004, Complainant was called at home when she was sick and asked to come to work; 6. on July 12, 2004, Complainant was issued a Leave and Counseling Memorandum; 7. on July 13, 2004, Complainant was issued a change in her compressed work schedule; and 8. management not assigning Complainant more interesting work. Both complaints were investigated. At the conclusion of the investigation, Complainant requested a hearing on both complaints before an EEOC Administrative Judge (AJ1). On August 8, 2005, AJ1 issued a decision by summary judgment in favor of the Agency. The Agency implemented the decision. Complainant appealed the decision to the Commission. In EEOC Appeal 01A60072 (April 7, 2006), EEOC reversed AJ1's decision by summary judgment, and remanded the matter back for a hearing. The decision noted that there was evidence that supported Complainant's assertion that the Agency's actions constituted unlawful retaliation. The decision indicated that Complainant's co-workers provided evidence to establish that Complainant was known for her prior EEO activity and that the Agency's managers were all aware of Complainant's previous EEO activity. Statements from Complainant's co-workers further supported her claim that she was unjustly harassed about her requests for leave unlike a similarly situated employee who had taken large amounts of leave but was not harassed. The decision stated that this employee had not engaged in any protected EEO activity. As such, the Commission found that there were material facts in dispute and that the matter should be remanded for a hearing. On remand, the Agency asserted that Complainant later withdrew her hearing request, so the Agency issued a final decision on December 8, 2010, addressing both Agency Nos. PI-03-02 and PI-04-08. The Agency determined that Complainant was not subjected to discrimination or retaliation as alleged. Complainant appealed the Agency's final decision, which was docketed as EEOC Appeal No. 0120111827. Subsequently, despite its earlier determination that Complainant had withdrawn her hearing request for both complaints, the Agency later asserted that the EEOC Administrative Judge (AJ2) issued a decision on Agency No. PI-04-08.3 Consequently, the Agency determined that it needed to reissue a final decision solely addressing Agency No. PI-03-02. On June 7, 2011, the Agency issued its final decision finding no discrimination on Agency No. PI-03-02. Complainant appealed this final decision, which was docketed as EEOC Appeal No. 0120113765. When Appeal No. 0120111827 was filed, the EEOC's Office of Federal Operations (OFO) notified the Agency by letter dated March 17, 2011, that it must provide the EEOC with the complete record pertaining to the complaint at hand within 30 calendar days of notification of this appeal. See 29 C.F.R. § 1614.403. The March 17, 2011 letter advised the Agency that failure to submit the entire complaint file within the specified time frame could result in the Commission drawing an adverse inference. On July 7, 2011, Complainant filed a second appeal with OFO concerning the second final Agency decision issued by the Agency rescinding its previous decision on Agency No. PI-03-02. By letter dated August 29, 2011, OFO notified the Agency of the filing of EEOC Appeal No. 0120113765, and that it was required to submit a copy of the entire complaint file within thirty (30) calendar days of the Agency's receipt of the letter of notification. The August 29, 2011 letter advised the Agency that failure to submit the entire complaint file within the specified time frame could result in the Commission drawing an adverse inference. By e-mail dated August 15, 2013, OFO again submitted a request for the complete complaint files for both Agency Nos. PI-03-02 and PI-04-08. The e-mail request noted the age of the complaints and asked that the Agency comply with the request for the records by August 30, 2013. The Agency official who received the e-mail communication noted that he was no longer with the Agency's EEO Office, but forwarded the matter to the new EEO Director and an appropriate Team Lead. When the Agency still failed to provide the requested complaint files, on April 24, 2014, OFO issued a "Notice to Show Good Cause Why Sanctions Should Not Be Imposed" (Notice to Show Cause). The Notice to Show Cause ordered the Agency to submit the complete complaint files for both cases, or provide good cause why it could not, through evidence and argument, within (20) calendar days. Despite receipt of the Notice to Show Cause, the Agency failed to provide the records or establish good cause for its failure. In EEOC Appeal Nos. 0120111827 & 0120113765, the Commission found that the Agency's failure to submit the complete complaint records made it impossible to determine whether the findings and credibility determinations made or adopted in its final decisions were supported by the record. Based on the conduct of the Agency, we concluded that the imposition of sanctions was warranted. EEOC had repeatedly requested the complete complaint files from the Agency. The Agency was on notice that sanctions were possible if the Agency failed to comply. The Agency failed to submit the records requested and, consequently, we could not conduct a proper review of the records. The decision found that: (1) the Agency repeatedly failed to comply with EEOC's requests for the complete complaint files, and (2) there was an excessively long delay with no meritorious explanation provided by the Agency. With the failure by the Agency to provide a copy of the complete records without explanation, we were unable to properly review whether AJ2's findings and credibility determinations were supported by the evidence of record. In this circumstance, we concluded that the most appropriate sanction was default judgment for Complainant. After deciding to issue a default judgment for Complainant, the decision determined that there was evidence that established Complainant's right to relief. Accordingly, the decision ordered the Agency: (1) to remove any negative comments preserved in Complainant's personnel records or performance reviews/appraisals beginning in September 2002, as well as the Leave and Counseling Memorandum dated July 12, 2004; (2) to conduct training for the management officials who have been found to have subjected Complainant to unlawful retaliation; and (3) to conduct an investigation regarding Complainant's claim for compensatory damages and to issue a decision on the claim in accordance with 29 C.F.R. § 1614.110. The Agency issued a Final Order implementing the Commission's decision. However, Complainant's Attorney appealed the final order which was docketed as EEOC Appeal No. 0120150433. The Attorney asserted that the Agency failed to implement the Commission's ordered remedies as specifically ordered in the previous decision by shortening the time for Complainant to provide evidence in support of her claim for compensatory damages. The Agency issued an Amended Final Order on November 24, 2014, allowing Complainant the full time as ordered in the previous decision to provide evidence in support of her claim for compensatory damages. However, on July 24, 2015, Petitioner submitted the instant Petition for Enforcement. Petitioner contends that the Agency failed to provide any of the relief ordered by the Commission. The instant petition was docketed as Petition No. 0420150018. While the Petition for Enforcement was pending, on September 15, 2015, the Agency issued its final decision regarding compensatory damages and fees and costs for the Attorney. Complainant filed an appeal, docketed as EEOC Appeal No. 0120160089. The Agency asserted that this appeal should be dismissed. The Agency indicated that it was going to rescind this final decision and issue another decision on compensatory damages. However, the Agency has not provided the Commission with any new decision. As such, we find no reason to dismiss Complainant's appeal in EEOC Appeal No. 0120160089. We find that the two appeals, namely EEOC Appeal Nos. 0120150433, & 0120160089, and petition for enforcement all allege issues with the Agency's compliance or noncompliance with the Commission's decision in EEOC Appeal Nos. 0120111827 & 0120113765. We find that all of these matters are intertwined and should be addressed in a single decision. As such, we are consolidating the appeals and petition herein. ANALYSIS AND FINDINGS Compensatory Damages The Agency held that Complainant was not entitled to compensatory damages. The Agency stated that compensatory damages only apply to intentional acts of discrimination. They should not be awarded for the Agency's improper handling of an EEO complaint. As such, the Agency concluded that Commission cannot order the Agency to provide compensatory damages in the instant case. The Commission, however, has previously determined that a complainant may be entitled to compensatory damages following the issuance of a default judgment as a sanction against an agency for its failure to comply with EEOC's 29 C.F.R. Part 1614 regulations. See Montes-Rodriguez v. Department of Agriculture, EEOC Appeal No. 0120080282 (January 12, 2012), request for reconsideration denied, EEOC Request No. 0520120295 (December 20, 2012); Cox v. Social Security Administration, EEOC Appeal No. 0720050055 (December 24, 2009); Royal v. Department of Veterans Affairs, EEOC Request No. 0520080052 (September 25, 2009). Here, we have already held that Complainant established a prima facie case of retaliation. As such, when entering the default judgment against the Agency, we determined that Complainant was entitled to an award of compensatory damages if she produced evidence in support of such a claim. The record shows that Complainant submitted such evidence to the Agency. Therefore, we find that the Agency erred in denying Complainant's entitlement to compensatory damages regardless of the evidence she submitted in support of her claim. In the interests of avoiding further delay in this matter, we shall review Complainant's submissions in support of her claims for compensatory damages, and determine Complainant's entitlement to such damages. As an initial matter, we note that Complainant has asked for lost compensation and other benefits from the Agency's failure to promote her to the GS-15 level, as well as for the restoration of leave used due to stress. We will not award Complainant back pay and leave restoration, since those remedies are equitable in nature rather than compensatory damages, and are beyond the scope of order for relief in Appeal Nos. 0120111827 & 0120113765. See Carter v. Dep't. of Veterans Affairs, EEOC Appeal No. 0120122266 (Oct. 18, 2012); see also Trina C. v. U.S. Postal Service, EEOC Appeal No. 0120141973 (Nov. 14, 2014). Compensatory damages are awarded to compensate a complaining party for losses or suffering inflicted due to discriminatory acts or conduct. Enforcement Guidance: Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002, at 5 (July 14, 1992) (hereinafter Enforcement Guidance). Damages are available for pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, character, or reputation, and other intangible injuries that result from discriminatory conduct. Id. at 7. Awards for emotional harm are warranted only if Complainant establishes a sufficient causal connection between the Agency's illegal actions and her injury. Id. Such awards are limited to the amount necessary to compensate Complainant for actual harm and should take into account the severity of the harm and the length of time Complainant has suffered from the harm. Coopwood v. Dep't. of Transp., EEOC Appeal No. 0120083127 (May 2, 2012) citing Carpenter v. Dep't. of Agric., EEOC Appeal No. 01945672 (July 17, 1995). To establish the existence of intangible injury, Complainant can submit objective evidence, as well as other types of evidence, including: a statement by the complainant, explaining how the discrimination affected the complainant; statements from others, including family members, friends, and health care providers, that address the outward manifestations of the impact of the discrimination on the complainant; documentation of treatment related to the effects of the discrimination. Coopwood, supra, citing Carle v. Dep't. of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993). Here, Complainant asserted that, as a result of the Agency's actions, her fibromyalgia which had been improving took a turn for the worse. Complainant indicated that the change occurred due to the great deal of stress she experienced at work. Complainant provided a copy of a letter from a Physician dated October 5, 2000, to support her assertion. Complainant indicated that she has been subjected to seven years of harassment which has negatively impacted her medical condition. As a result, she asserted that she has been in constant pain and overwhelming fatigue. She also indicated that she has a worsening case of irritable bowel syndrome and a compromised immune system which has led to frequent infections. Due to Complainant's worsening of her medical conditions, she stated that she has not been able to take part in social events and has not been able to enjoy life. Based on this information, Complainant requested $300,000 in non-pecuniary damages. Complainant also asked for pecuniary costs for medical expenses associated with the stress caused by the harassment. In addition, Complainant stated that she had to take leave without pay due to the stress-related disorders caused by the harassment. First, we note Complainant stated that she experienced stress due to seven years of harassment. However, the finding by the Commission only involved events from September 2002 through July 2004. As such, we are limited to the damage cause by these events as determined in EEOC Appeal Nos. 0120111827 & 0120113765. Complainant, in her affidavit in support of her claim for damages, provided instances she left work due to harassment by management after the timeframe of the finding by the Commission. For example, Complainant stated that on April 13, 2006, she went home sick and was harassed by management about a meeting. We cannot consider events outside of the 2002-2004 timeframe in considering Complainant's entitlement to compensatory damages. Based on our review of the record, we find that Complainant's claim for $300,000 in non-pecuniary damages to be excessive. In determining compensatory damages, the Commission strives to make damage awards for emotional harm consistent with awards in similar cases. We note that the Commission has awarded $ 25,000 in non-pecuniary compensatory damages in cases somewhat similar to Complainant's case in terms of the harm sustained. See Neal v. U.S. Postal Service, EEOC Appeal No. 07A40059 (Aug. 29, 2005) (awarding $25,000 where Complainant testified to the exacerbation of her fibromyalgia, fatigue, stress, and depression); Pachecano v. U.S. Postal Service, Appeal No. 01A32170 (May 20, 2004) ($25,000 awarded to Complainant when he was not selected for a position and he experienced depression and an aggravation of his pre-existing Post Traumatic Stress Disorder); Baker v. Dep't. of Veterans Affairs, EEOC Appeal No. 07A30075 (Aug. 7, 2003) ($25,000 awarded to Complainant when she was not selected for a position and she experienced depression, anger, difficulty in sleeping and aggravation of her hypertension). Therefore, based on the evidence provided by Complainant, we find that she is entitled to $25,000 in non-pecuniary damages. Complainant also sought pecuniary damages. Pecuniary losses are out-of-pocket expenses that are incurred as a result of the employer's unlawful action. Typically these damages include reimbursement for medical expenses, job-hunting expenses, moving expenses, and other quantifiable out-of-pocket expenses. Enforcement Guidance at 14. Past pecuniary losses are losses incurred prior to the resolution of a complaint through a finding of discrimination, the issuance of a full-relief offer, or a voluntary settlement. Id. at 8-9. Future pecuniary losses are losses that are likely to occur after resolution of a complaint. Id. at 9. For claims seeking pecuniary damages, such objective evidence should include documentation of out-of-pocket expenses for all actual costs and an explanation of the expense, e.g., medical and psychological billings, other costs associated with the injury caused by the agency's actions, and an explanation for the expenditure. Id. at 9. Complainant provided a print-out of her medical expenses from her health care plan from January 1, 2014 to December 14, 2014, seeking reimbursement for $ 2,124.37. She also included charges from September 14, 2010 to December 9, 2013, for a total of $74,286.00. The Attorney argued that Complainant's physician in 2000 and 2001 no longer was in practice. However, we find that the list of medical expenses from September 2010 to December 2014 is not enough to establish a nexus between these expenses and the actions which the Commission found to be discriminatory which occurred from September 2002 through July 2004. As such, we conclude that Complainant has not established that she is entitled to pecuniary damages. Attorney's Fees and Costs Attorney's fees and costs shall be awarded in accordance with 29 C.F.R. § 1614.501(e). In federal EEO law, there is a strong presumption that a complainant who prevails in whole or in part on a claim of discrimination is entitled to an award of attorney's fees and costs. More specifically, complainants who prevail on claims alleging discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, and the Rehabilitation Act of 1973, as amended, are presumptively entitled to an award of attorney's fees and costs, unless special circumstances render such an award unjust. 29 C.F.R. § 1614.501(e)(1). Fee awards are typically calculated by multiplying the number of hours reasonably expended times a reasonable hourly rate, an amount also known as a lodestar. See 29 C.F.R. § 1614.501(e)(ii)(B); Hensley v. Eckerhart, 461 U.S. 424, 434 (1983); Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 11-13. (Aug. 5, 2015). The number of hours should not include excessive, redundant, or otherwise unnecessary hours. Hensley, 461 U.S. at 434; Bernard v. Dep't. of Veterans Affairs, EEOC Appeal No. 01966861 (July 17, 1998). The attorney requesting an award has the burden of proving, by specific evidence, entitlement to the requested fees and costs. Koren v. U.S. Postal Service, EEOC Request No. 05A20843 (Feb. 18, 2003). An application for attorney's fees must include a verified petition accompanied by an affidavit executed by the attorney of record itemizing each expense comprising the attorney's charges for legal services, together with bills, receipts, or other appropriate documentation. 29 C.F.R. § 1614.501(e)(2)(ii)(B); MD-110 at 11-17. While the Attorney is not required to record in great detail the manner in which each minute of time was expended, the Attorney does have the burden of identifying the subject matters on which he spent his time by submitting sufficiently detailed and contemporaneous time records to ensure that the time spent was accurately recorded. See Spencer v. Dep't. of the Treasury, EEOC Appeal No. 07A10035 (May 6, 2003). Hourly Rate The reasonable hourly rate is generally determined by the prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skill, experience and reputation. Blum v. Stenson, 465 U.S. 886, 895 (1984). We note that the Commission and courts generally use the Laffey matrix to determine the hourly rate for Washington, D.C. area attorneys. The Laffey matrix, which has its origins in the case of Laffey v. Northwest Airlines Inc., 572 F. Supp. 354 (D.D.C. 1983), reversed in part on other grounds, 746 F.2d 4 (D.C. Cir. 1984), is a chart compiled yearly by the United States Attorney's Office in the District of Columbia. It provides a schedule of hourly rates prevailing in the Washington, D.C., area in each year, going back to 1981, for attorneys at various levels of experience. Piper v. U.S. Dep't. of Justice, 339 F. Supp. 2d 13, 24 n. 8 (D.D.C. 2004); see also Ela O. v. Nat'l. Sec. Agency, EEOC Appeal No. 0720130021, (Oct. 30, 2015). Here, the Attorney provided affidavits to support his claimed hourly rate of $520. The Attorney noted that he had been practicing for 25 years when he began his representation of Complainant and indicated his legal experience. The Attorney provided additional affidavits from other lawyers to support his hourly rate. The Attorney also relied on the Laffey matrix for 2002 - 2015. The Agency indicated that the Attorney's normal billing rate was $380 based on the Retainer Agreement he had with Complainant. The Retainer Agreement noted that the billing rate would increase based increases in the Laffey Matrix. In this case, we agree with the Agency that the starting point for the hourly rate in 2004 was the Retainer Agreement Complainant had with her Attorney that set the hourly rate at $380 with upward adjustments based on changes over time in the Laffey Matrix. After considering the arguments on both sides, we find that $380 per hour was consistent with the prevailing market rate for an attorney of similar experience in 2004. However, we also note that the Retainer Agreement provided that the $380 starting hourly rate should be adjusted over time, based on the Laffey Matrix, to reflect the changes in rates over the more than a decade period for which the legal services were rendered. The record contains a copy of the Laffey Matrix4 rates from May 2004, when Complainant's attorney was first retained, through May 2015. Hours Expended On September 17, 2014, the Attorney indicated that he expended 509.2 hours of work for the entire period for which he provided legal services. On November 14, 2014, Complainant submitted a supplemental petition including an additional 53.4 hours of work. Therefore, the total claimed hours expended was 562.6 hours. In its attorney's fee decision, the Agency argued that the hours expended should be reduced across-the-board by 50% because Complainant only prevailed on her retaliation claim. Generally speaking, the hours spent on unsuccessful claims should be excluded in considering the amount of a reasonable fee only where the unsuccessful claims are distinct in all respects from the successful claims. Hensley, 461 U.S. 424 (1983). MD-110 at 11-14. Here, Complainant alleged discrimination based on the bases of age, disability and reprisal based on seven events that occurred. Even if Complainant did not prevail on every aspect of her complaint, that does not, in itself, justify a reduction in the hours expended where the successful and unsuccessful claims are closely intertwined. See id. "Claims are fractionable or unrelated when they involve distinctly different claims for relief that are based on different facts and legal theories." Id. As such, we are not persuaded by the Agency argument that there should be a reduction in the hours expended by the Attorney by 50%. The Agency also asserted that the hours expended should be further reduced to reflect only the "necessary hours expended" by the Attorney, reducing an additional 28.13 hours. We note that the Attorney has represented Complainant in this matter since March 2004, providing over a decade's worth of legal representation. While it is true that Complainant did not prevail in every basis of discrimination claimed and did not obtain all the relief requested, we determine that it is more appropriate to apply a 10% across-the-board reduction to the number of hours requested. This will both reflect those aspects of the case in which Complainant was unsuccessful and are severable from the prevailing issues, as well as any duplicative or excessive billing. The Agency also tried to reduce the Attorney's hours based on his skills and other factors for which to reduce the fee award citing Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir. 1974). The Commission has stated that prevailing Complainant is presumptively entitled to fees and costs unless special circumstances render such an award unjust. 29 C.F.R. § 1614.501(e)(1)(i); New York Gaslight Club, Inc. v. Carey, 447 U.S. 54 (1983); Thomas v. Dep't. of State, EEOC Appeal No. 01932717 (June 10, 1994). Special circumstances should be construed narrowly. We find that the Agency has not shown that the representation by the Attorney qualified for a reduction under a "special circumstance." As such, we reject the Agency's claim that the hours should be further reduced. In sum, we conclude that Complainant is entitled to the following attorney's fees: 0.9 hours x $380/hour = $342 128.8 hours x $390/hour = $50,232 226.3 hours x $405/hour = $91,651.50 6.7 hours x $425/hour = $2,847.50 14.4 hours x $440/hour = $6,336 76 hours x $465/hour = $35,340 7.8 hours x $475/hour = $3,705 46.6 hours x $495/hour = $23,067 0.9 hours x $505/hour = $454.50 54.2 hours x $520/hour = $28,184 Total amount of compensable attorney's fees: $242,159.50 - 10% = $217,943.55. Costs We now turn to the Agency's determination as to the Attorney's claim for costs. The Attorney sought $3,812.88 for expenses on September 17, 2014. The Attorney amended his request for costs on November 14, 2014, to include an additional $ 396.91 for expenses. The Agency argued that the Attorney sought over $1100 for copying costs and asserted that he failed to identify the reasons for the copies. The Agency claimed that the Attorney failed to identify what documents were copied. The Agency also indicated that the Attorney sought $ 31.26 for LexisNexis research without claiming hours for the "research for May." We disagree with the Agency's arguments. The Attorney properly documented his expenses. As such, we reject the Agency's reduction in costs to be given to Complainant. As such, Complainant is entitled to $ 4,209.79 in costs associated with the processing of the complaints at hand. Other Remedies Ordered by the Commission The Commission notes that the Agency was also ordered to (1) to remove any negative comments preserved in Complainant's personnel records or performance reviews/appraisals beginning in September 2002, as well as the Leave and Counseling Memorandum dated July 12, 2004, and (2) to conduct training for the management officials who have been found to have subjected Complainant to unlawful retaliation. The Agency also failed to show that it has posted the notice regarding the finding by the Commission. Based on our review of the records including the Compliance matters, we find that the Agency has not shown that it has taken the actions ordered by the Commission. As such, we find that the Agency has not complied with the Commission's previous decision. CONCLUSION Upon review of the record, we GRANT Complainant's Petition for Enforcement. Furthermore, we REVERSE the Agency's decision on compensatory damages and fees and costs. The matter is REMANDED to the Agency in accordance with the ORDER below. ORDER (C0610) The Agency is ordered to take the following remedial action: 1. The Agency shall pay Complainant $25,000 in non-pecuniary compensatory damages. 2. The Agency shall pay Complainant $217,943.55 in attorney's fees and $4,209.79 in costs. 3. The Agency shall remove any negative comments preserved in Complainant's personnel records or performance reviews/appraisals beginning in September 2002, as well as the Leave and Counseling Memorandum dated July 12, 2004. 4. The Agency shall conduct training for the management officials who have been found to have subjected Complainant to unlawful retaliation. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented. POSTING ORDER (G0914) The Agency is ordered to post at its Washington, D.C., facility 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 June 2, 2016 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Petitioner's name when the decision is published to non-parties and the Commission's website. 2 We note that Complainant could also be referred to as "Petitioner" due to the Petition for Enforcement. Because this decision addresses both appeals as well as the Petition, for sake of clarity, the decision will refer only to "Complainant." 3 We note that, in the record provided by the Agency, there was no copy of AJ2's decision and the Agency failed to provide a complete copy of the hearing record to the Commission. 4 Each year, the Laffey Matrix rates run from June 1 to May 31 of the following year. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0420150018 14 0420150018, 0120150433 & 0120160089