Terry E. Cox, Complainant,
v.
Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Appeal No. 0720050055 (formerly 07A50055)
Hearing No. 160-A0-8683x
Agency No. 00-0187-SSA
December 24, 2009
 
DECISION
 
In conjunction with the issuance of its March 9, 2005 final order, the agency filed a timely appeal which the Commission accepts pursuant to 29 C.F.R. § 1614.405(a). On appeal, the agency requests that the Commission affirm its rejection of an EEOC Administrative Judge's (AJ) finding of discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The agency also requests that the Commission affirm its rejection of the relief ordered by the AJ. On April 13, 2005, complainant timely filed her cross-appeal to the agency's rejection of the AJ decision, docketed as EEOC Appeal No. 01A53297 (June 9, 2005). The two appeals have been consolidated for consideration in the instant decision. For the following reasons, the Commission REVERSES the agency's final order.
  
ISSUES PRESENTED
 
The issues presented are whether it was an abuse of discretion for the Administrative Judge to issue a default judgment in complainant's favor as a sanction for agency actions, and the propriety of the remedies subsequently awarded.
  
BACKGROUND
 
At the time of events giving rise to this complaint, complainant worked as an Attorney-Advisor, GS-12, at the agency's Manchester Hearing Office in Manchester. New Hampshire. On January 14, 2000, complainant filed an EEO complaint alleging that she was discriminated against on the bases of sex (female), and age (51) when:
1. in June 1998, she was not selected for a detail to the Senior Attorney. GS-13, position;
2. in October 1998, she was not selected for a detail to the Senior Attorney. GS-13, position;
3. in October 1999, she was not selected for the Senior Attorney. GS-13, position advertised under vacancy announcement 16-99; and
4. in January 2000, she was not selected for the Supervisory Attorney-Advisor (Group Supervisor), GS-13, position advertised under vacancy announcement 34-99.
 
At the conclusion of the investigation, complainant was provided with a copy of the Report of Investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ-1). Complainant timely requested a hearing.
 
On December 8, 2000, complainant filed a motion with AJ-1 to amend her complaint to include the bases of reprisal and disability. She filed an additional motion to amend on February 12, 2001, claiming that based on sex, disability and in reprisal for her prior EEO activity she was:
a) denied official time for preparing for and being present at properly noticed depositions (in connection with the instant case);
b) denied "hazard leave" during winter storm conditions: and
c) placed on a performance assessment plan.
 
AJ-1 granted complainant's motions to amend with regard to the addition of the bases of disability and reprisal, and for the addition of issues (a) and (b), listed above. However, complainant was referred to EEO counseling for the issue of the performance assessment plan (issue (c)).
 
Pursuant to complainant's hearing request, AJ-1 issued an Acknowledgment and Order dated September 6, 2000, which outlined the procedures to be followed in the hearing process. It noted that the parties were expected to initiate and complete discovery within 90 calendar days.
 
On September 29, 2000, complainant forwarded a Request for Admissions to the agency, which the agency received October 10, 2000. The agency did not respond, as it had not yet appointed a representative.
 
On November 6, 2000, complainant's attorney entered her appearance and claimed that the Report of Investigation (ROI) was inadequate and inappropriately redacted. On November 10, 2000, complainant served her second discovery request, to which the agency did not immediately respond. On November 14, 2000, the agency counsel entered her appearance, and promptly sent an unredacted copy of the ROI to complainant.
 
On November 17, 2000, complainant asked AJ-1 to impose sanctions on the agency based on what she believed were the deficiencies in the ROI. On November 21, 2000, complainant sought leave to depose ten witnesses and renewed her request to AJ-1 for sanctions in the form of attorney's fees and costs for the agency's failure to develop the record.
 
On Monday, November 27, 2000, complainant served notice of her intent to schedule depositions of over thirty individuals, to commence the following Monday. December 4, 2000, at the complainant's attorney's office in Marion. Massachusetts. The deposition notice required the agency counsel to attempt to identify said individuals, contact them for scheduling their appearances, and coordinate travel to complainant's attorney's office.
 
Agency counsel contacted complainant's attorney on November 29, 2000, to advise her that the proposed deposition schedule would not be logistically possible. She stated that she would need additional time to contact all the named employees, to identify the unnamed individuals, and to arrange for their participation and travel to the deposition location.
 
On November 29, 2000, the parties filed a Parties' Joint Request for Rulings. Therein, they requested that AJ-1 rule on the agency's contention that it had 30 days to file objections to the depositions, and to request that AJ-1 extend the 90-day time period for discovery (which, according to AJ-l's Acknowledgment and Order, would expire on December 10, 2000) by an additional eight weeks to allow for time to schedule the depositions, given the intervening holidays.
 
The next day, November 30, 2000, AJ-1 ordered that the agency produce the thirty employees for the depositions beginning Monday. December 4, 2000, without specifically addressing the request of the parties to extend the discovery- period. The agency was not prepared to do so and notified the complainant's attorney on December 1, 2000, that the agency was not going to appear for the depositions as scheduled.
 
Complainant filed a Motion to Compel and Motion for Sanctions on December 4, 2000. The agency responded on December 11, 2000, in a letter in which it stated its willingness to work out a mutually agreeable deposition schedule for those individuals "relevant to the complaint." The agency maintained that at all times it was willing to cooperate with the discovery requests. However, the agency indicated that it needed more time in order to comply with the requests.
 
On December 15, 2000, complainant filed a second Motion to Compel and Motion for Sanctions with respect to discovery, to which the agency did not respond. As the discovery period had ended on December 10, 2000, with no granting of an extension by AJ-1, neither party continued to issue discovery requests nor responded to any outstanding requests.
 
On February 14, 2001, AJ-1 issued an Order directing the agency to pay the attorney's fees and costs associated with the depositions which had been scheduled for December 4, 2000. Complainant was ordered to submit her fee petition within ten days, to which the agency had five days to respond. AJ-1 also ordered the agency to Show Cause why a default judgment should not be entered against the agency for its failure to develop the record and its failure to timely proceed with discovery. The agency's response was due within fifteen days of its receipt of the February 14, 2001 Order.
 
Complainant submitted her fee petition February 23, 2001, and the agency submitted its response on March 5, 2001. On March 13, 2001, the agency filed its response to the Show Cause Order of February 14, 2001. Even allowing for mailing, AJ-1 found that the agency's response to her Show Cause Order was untimely as, by her calculation, it should have been submitted on or before March 9, 2001. In its Response to the Show Cause Order, the agency did not contest the fact that the ROI was inadequate to fully evaluate the merits of complainant's case. However, the agency argued that it was not responsible for the results of the investigation because it had contracted with an outside company to investigate the complaint and "does not control these investigations."
 
AJ-1 issued a default judgment on March 29, 2001. In her decision. AJ-1 specifically found that the agency failed to adequately develop the factual record prior to hearing, failed to respond to complainant's September 29, 2000 Request for Admissions and her November 10, 2000 discovery request. AJ-1 also faulted the agency for its failure to comply with AJ-1's November 30, 2000 Order to produce thirty witnesses for depositions, and for the agency's untimely response to her Show Cause Order.
 
AJ-1 ordered all relief requested by complainant, including placement in the subject positions, back pay, compensatory damages, correction of leave records, attorney's fees and the posting of a notice.
 
The parties were ordered to brief AJ-1 on attorney's fees and compensatory damage issues, after which AJ-1 would issue a decision from which either party could file an appeal with the Commission. That decision was pending with the Commission's New York District Office on September 11, 2001, and the case records were destroyed as a consequence of the terrorist attack on New York City on that day.
 
In November 2001, the case was assigned to a second AJ (AJ-2) in the Boston Field Office and the case file records were reconstructed and sent to AJ-2 in September 2002. AJ-2 issued a decision on remedies, including compensatory damages and attorney's fees, on January 27, 2005. AJ-2 awarded all relief ordered by AJ-1 and found that complainant was entitled to $60,000.00 in compensatory damages and $29,026.30 in attorney's fees.
 
It is from this decision that the agency issued a final order rejecting both AJ-1's default judgment in favor of complainant, and AJ-2's award of damages, and timely filed its appeal. Complainant subsequently filed a cross appeal to the agency's rejection of both AJ decisions.
  
CONTENTIONS ON APPEAL
 
On appeal, the agency argues that the default judgment in favor of complainant was an excessive sanction, given the extent of the agency's non-compliance with the orders of AJ-1.1 The agency asserts that it attempted to cooperate with complainant and never willfully refused to cooperate in discovery. The agency acknowledges that the ROI may have been too inadequate from which to render a decision.
 
However, the agency notes that the hearing process is designed to be an extension of the investigation and may be used to perfect the record through discovery. The agency argues as well that it timely responded to the Orders of AJ-1, based upon when it received the Orders.
 
The agency further claims that an award of compensatory damages and attorney's fees is inappropriate given that complainant was awarded a default judgment and there was no finding that she had actually been discriminated against. In the alternative, the agency states that if the default judgment were to be upheld on appeal, the amount of damages awarded to complainant was excessive and should be reduced.
 
In response, complainant argues that the agency's brief was not supported by the facts in the record. Complainant states that the agency willfully refused to cooperate with discovery: that it knowingly issued a deficient ROI: and that it deliberately refused to comply with AJ-1's Orders, either at all or in a timely manner.
 
Moreover, complainant argues that even if the agency's reply to the Show Cause Order was timely, a default judgment would have been appropriate given the agency's non-response to the two requests for discovery; the refusal to produce any witnesses for deposition: and its non-deterrence by the threat of a lesser sanction in the form of attorney's fees and costs in AJ-1's November 30, 2000 Order. Further, complainant argues that a default judgment carries the same consequences as a finding on the merits and that the award of relief was therefore appropriate.
 
Additionally, in complainant's brief in support of her cross appeal, complainant argues that the relief ordered by AJ-2 in the January 27, 2005 decision was inadequate to compensate complainant for the harm she suffered as a result of the agency's actions. Complainant claims that the compensatory damages amount should be higher, that the attorney's fee award should be upwardly adjusted, that complainant should be placed in the positions currently occupied by the selectees, and that AJ-2 should have held a hearing in order to determine the amount of compensatory damages to award.
  
ANALYSIS AND FINDINGS
  
Review of the AJ Decision
 
The Commission's regulations afford broad authority to AJs for the conduct of hearings. 29 C.F.R. § 1614.109 et seq; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chapter 7, Section III(D) (November 9, 1999). An AJ has inherent powers to conduct a hearing and issue appropriate sanctions, including a default judgment. Id.; see Matheny v. Department of Justice, EEOC Request No. 05A30373 (April 21, 2005); Rountree v. Department of the Treasury, EEOC Appeal No. 07A00015 (July 17, 2001).
 
Specifically, our regulations provide that where a party, inter alia, fails to respond to an order of an AJ, the AJ may, as appropriate, take action against the non-complying party pursuant to 29 C.F.R. § 1614.109(f)(3), i.e., an AJ may: (1) draw an adverse inference that the requested information would have reflected unfavorably on the non-complying party; (2) consider the requested information to be established in favor of the opposing party; (3) exclude other evidence offered by the non-complying party; (4) issue a decision fully or partially in favor of the opposing party; or (5) take other action deemed appropriate, e.g., payment of costs and expenses by the non-complying parry. Id. An AJ must first issue a Notice to Show Cause to the non-complying party. EEO MD-110, Chapter 7, Section III(D), fn. 6; see DaCosta v. Department of Education, EEOC Appeal No. 01995992 (February 25, 2000).
 
In the instant case, the agency's actions in several areas led AJ-1 to impose a default judgment in favor of complainant, namely: 1) the agency's failure to adequately develop the factual record prior to hearing; 2) the agency's failure to respond to complainant's September 29, 2000 Request for Admissions and her November 10, 2000 discovery request and the agency's failure to comply with AJ-1's November 30, 2000 Order to produce thirty witnesses for depositions; and 3) AJ-1's determination that the agency's response to her Show Cause Order was untimely.
  
The Inadequacy of the Report of Investigation
 
On November 6, 2000, complainant served the agency and AJ-1 with notice that the Report of Investigation (ROI) was improperly redacted and inadequately developed. Although the agency remedied the issue of the redacted ROI by serving an unredacted copy to complainant and her attorney on November 14, 2000, the inadequacy of the ROI went unaddressed at this time by the agency and AJ-1.
 
The complainant correctly notes that the ROI was inadequate given the number of non-selections at issue and the lack of documentation in the record. At a minimum, a record for a non-selection case such as this should include the applications for those who made the best qualified list, statements from all recommending and selecting officials, and interview panel notes.
 
The fact that the agency contracts with an outside company to conduct the investigation does not absolve it of its responsibility to ensure that the ROI is adequately developed on which to base a decision. See 29 C.F.R. § 1614.108; EEO MD-110, p. 5-27. The agency has a duty to develop an impartial and appropriate factual record upon which to make findings on the claims raised by the written complaint. An appropriate factual record is one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred. See Carr v. U. S. Postal Service, EEOC Appeal 01A43665 (May 18, 2006); 29 C.F.R. § 1614.108(a). The purpose of discovery is to perfect the record in the hearing process, but it is not a substitute for an appropriate investigation. Moreover, the Commission notes that every complainant does not choose the option of requesting a hearing.
 
The regulations found at 29 C.F.R. § 1614.108(b) squarely place the responsibility for an accurate, complete investigation, completed within 180 days, upon the agency. Even if an agency contracts with a company to produce the investigation, it retains control of the outcome of that investigation, and is well within its rights to review the result and require the contractor to complete it in a satisfactory manner. Contracting out the investigation does not relieve an agency of its responsibility to ensure that a complete and timely investigation has occurred.
  
Failure to Abide by Timeframes and to Comply with AJ Orders
 
In the standard Acknowledgment and Order issued by Commission Administrative Judges upon receipt of a request for a hearing, the AJ sets forth the timeframes for discovery, and other aspects of the hearing process. The Acknowledgment and Order in this instance, dated September 6, 2000, noted that discover, was to be initiated and completed within 90 days, or by December 10, 2000. In order to comply with the timeframes for initiating discovery, the agency was required to appoint a representative and begin proceedings within 30 days of receipt of the Order. The agency took over two months, or two-thirds of the time allotted for discovery, to appoint a representative.
 
Administrative Judges operate under a regulatory timeframe that dictates that they issue a decision on a complaint within 180 days of the request for the hearing, unless the AJ has made a written determination that good cause exists to extend the time frame. 29 C.F.R. § 1614.109(i). It is in the interests of justice that this time frame exists, as it would be prudent to hold a hearing, if warranted, as close in time to the alleged event of discrimination, so that witness testimony will be most fresh. Therefore, an extended discovery period merely serves to slow the AJ's ability to issue a decision within this 180-day period.
 
On September 29, 2000, while still unrepresented by counsel, complainant initiated discovery by sending the agency a Request for Admissions. Requests for admissions are requests that the opposing party admit or deny, in writing, factual statements regarding the complaint and are permitted under 29 C.F.R. § 1614.109(d). A request for admissions is a device intended to narrow the controversy at hearing by establishing undisputed facts beforehand. Under EEO MD-110, p. 7-18, requests for admissions are to be limited to thirty requests, including discrete sub-parts.
 
In this case, the complainant's request for admissions had 15 statements for the agency to admit or deny, and according to the Acknowledgment and Order the deadline for response was October 30, 2000. The agency received the request on October 10, 2000.
 
The agency failed to respond to the request for admissions upon receipt, as it had not appointed a representative to handle the case at this point. This does not excuse the agency's failure to respond. However, more importantly, we note that even once a representative was appointed on November 14, 2000, the agency still did not respond to the request for admissions.
 
On November 10, 2000, complainant served her second discovery request, to which the agency did not immediately respond. On November 21, 2000, complainant sought leave to depose ten witnesses, and on Monday, November 27, 2000, complainant served notice of her intent to schedule depositions of over thirty individuals (including the previously named 10) to commence the following Monday, December 4, 2000. The agency advised complainant that the proposed deposition schedule would not be logistically possible, and the agency representative stated that she would need additional time to arrange attendance of the deponents. However, the discovery period was scheduled to end on December 10, 2000, which left very little time with which to work.
 
An agency cannot create the good cause to extend the lime frame to complete discovery through inaction at the outset of the discovery period. In this case, by the end of the discovery period, the parties were mutually attempting to comply with the timeframes set out in AJ-1's Acknowledgment and Order. They submitted a Parties' Joint Request for Rulings when it became obvious that they would not be able to complete discovery in 90 days, and would not be able to resolve their differences over discovery issues without the intervention of AJ-1. AJ-1 did not see fit to extend the discovery period.
 
The agency was negligent in responding to discovery requests in a timely manner. Complainant attempted to abide by the time frames for discovery set out by AJ-1 on September 6, 2000. The agency, by its inaction, may not unduly delay the progress an AJ may wish to make when moving a case toward hearing. The parties need to abide by the time frames set out in an AJ's Acknowledgment and Order.
 
Additionally, the agency's blatant refusal to even attempt to comply with AJ-1's Order to produce the 30 requested witnesses for deposition was inexcusable. Although it may not have been possible to comply with complainant's deposition schedule in its entirety on short notice, surely the agency could have partially complied and filed its objections with AJ-1 in conjunction with that partial compliance. It could further have raised its objections on appeal to the Commission following the AJ's issuance of a final decision. An agency may not pick and choose which Orders of an AJ will be followed. AJ-1 ordered that the agency produce the witnesses requested. The agency then had a responsibility to attempt compliance to the fullest extent possible.
  
Sanctions Motions and Show Cause Orders
 
As a consequence of the agency's failures in the discovery process, complainant filed a relatively quick succession of Motions for Sanctions with AJ-1. Complainant first filed a Motion for Sanctions on November 17, 2000, based on the inadequacy of the ROI. She next filed a Motion for Sanctions on December 4, 2000, based on the agency's refusal to have 30 witnesses ready for depositions on a week's notice. She supplemented the Motion on December 7, 2000, noting the agency's failure to respond to the Requests for Admissions.
 
The agency responded to the Motion on December 11, 2000, and indicated its willingness to work out a deposition schedule, once AJ-1 ruled on the relevancy of the witnesses requested and on the request to extend the timeframe for discovery. Less than 2 weeks later, on December 15, 2000, complainant again submitted a Motion to Compel and a Motion for Sanctions to AJ-1, renewing her request to sanction the agency to the fullest extent possible and to award attorney's fees incurred during discovery, draw adverse inferences in favor of complainant and to issue a decision fully in favor of complainant.
 
AJ-1's first response to the Motions for Sanctions was issued on February 14, 2001, at which time she ordered that the agency pay the attorney's fees and costs incurred because of the failure to produce the witnesses for deposition. She also issued a Show Cause Order at this time, as to why there should not be a default judgment issued in complainant's favor, "in light of its failure to fully develop the record and its failure to timely proceed with discovery."
 
The agency responded to AJ-1's February 14, 2001 Show Cause Order on March 13, 2001, in which it argued that a default judgment for complainant would be wholly inappropriate based on the extent of the agency's wrongdoing. It claimed that it was not entirely responsible for the inadequacy of the ROI based on its production by a contractor. It also argued that it was at all times willing to work out a schedule to conduct depositions, once issues of relevancy had been resolved.
 
In her March 29, 2001 Decision, AJ-1 found that the agency's response to the Show Cause Order issued by AJ-1 (located in New York) on February 14, 2001 was submitted in an untimely manner. She also found that the agency failed to timely respond to the complainant's February 23, 2001 fee petition.
 
We note, however, that the record shows that the Show Cause Order was mistakenly delivered to the Commission's own offices in the Boston Federal Building on February 22, 2001, (and not the agency's mail room as complainant claimed), as evidenced by the date stamp on the Order.
 
The Show Cause Order was then redelivered to the agency's offices, which are located in the same building but on a different floor, on February 27, 2001. The agency notified AJ-1 about the mis-delivery of her Order on March 15, 2001, and provided proof in the form of a copy of the February 14, 2001 Order, clearly showing the EEOC date stamp on February 22, 2001, and the agency's OGC date stamp on February 27, 2001. AJ-1 does not explain why she does not credit this physical evidence of the agency's receipt in her March 29, 2001 Decision. As AJ-1 gave the agency fifteen days to respond to her Order, and the agency responded on March 13, 2001, we find that AJ-1 mistakenly found that the agency's response was untimely.
 
We also find that the agency's response to complainant's attorney's fee petition was likewise not untimely. Although complainant claims that her February 23, 2001 fee petition gave the agency constructive notice that AJ-1 had issued an Order on February 14, 2001, she did not include a copy of that Order with her petition, nor did she note the time frame for the agency to respond. Until the agency actually received AJ-1's Order on February 27, 2001, it was not on notice as to when its response to the fee petition would be due.
 
The end result of the discovery disputes and Motions for Sanctions was AJ-1's issuance of a Decision on March 29, 2001, in which she sanctioned the agency for its failure to develop the record, its noncompliance with her Orders, its non-responsiveness to the complainant's discovery requests, and for its late response to her Orders.
 
After a review of the record, we find that AJ-1's decision to sanction the agency was proper. There is support for AJ-1's conclusion that the agency failed to respond to two discovery requests timely submitted by complainant, that the agency failed to comply with AJ-1's Order of November 30, 2000 to produce witnesses for deposition, and failed to develop a factual record consistent with the Commission's regulations. Even given our finding that the agency's response to AJ-1's Show Cause Order was timely, we find that the agency did not show cause as to why it should not be sanctioned. We conclude that the imposition of a sanction in this case was properly within AJ-1's discretion, given the agency's failure to develop the investigative record, its disregard for the time frames contained in the original Acknowledgment and Order, and the subsequent Orders of AJ-1, and its failure to name a representative before 60 of the 90 days allotted to discovery had passed.
  
Determination of the Sanction
 
In general, the Commission has held that sanctions, while corrective, also act to prevent similar misconduct in the future and must be tailored to each situation, applying the least severe sanction necessary to respond to the party's failure to show good cause for its actions, as well as to equitably remedy the opposing party. See Gray v. Department of Defense, EEOC Appeal No. 07A50030 (March 1, 2007); Rountree v. Department of the Treasury, supra; Hale v. Department of Justice, EEOC Appeal No. 01A03341 (December 8, 2000). The Commission has emphasized that the purpose of a sanction is to deter the underlying conduct of the non-complying party. See Barbour v. U. S. Postal Service, EEOC Appeal No. 07A30133 (June 16, 2005).
 
The factors pertinent to "tailoring" a sanction, or determining whether a sanction is. in fact, warranted, include: (1) the extent and nature of the non-compliance, including 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, if any; and (4) the effect on the integrity of the EEO process. Gray v. Department of Defense, supra; Voysest v. Social Security Administration, EEOC Appeal No. 01A35340 (January 18, 2005).
 
We conclude that AJ-1's decision to issue a default judgment in favor of complainant was appropriate under the circumstances of this case, and does not constitute an abuse of discretion. Although the agency has argued that it had good cause with regard to its non-production of witnesses for deposition, we find that its abandonment of any effort to even partially comply with AJ-1's Order to produce the deponents undermines any legitimate arguments it may have had as to the relevancy of some of the requested witnesses. Further, the agency did not show good cause with respect to the delay in appointing a representative until the discovery process only had 30 of the 90 days remaining, or for its failure to respond to complainant's requests for admissions or her other discovery requests.
 
Under our decision in Royal v. Department of Veterans Affairs, EEOC Request No. 0520080052 (September 25, 2009), we found that the fourth factor in appropriately tailoring a sanction, the effect on the integrity of the EEO process, should not be underestimated. As we noted there, "Protecting the integrity of the 29 C.F.R. Part 1614 process is central to the Commission's ability to carry out its charge of eradicating discrimination in the federal sector." An agency which treats the deadlines in the hearings process, and the requirement to produce an adequately developed ROI, as optional, based on when its staffing and resources may allow it comply, has a negative effect on the outcome not only of the immediate case, but also of any other cases under its jurisdiction, as well as those under the jurisdiction of an AJ. The Commission must insure that agencies, as well as complainants, abide by its regulations and the Orders of its AJs.
 
Our decision to affirm AJ-1's issuance of a default judgment will effectively emphasize to the agency the need to comply with AJ Orders in a timely manner, as well as ensuring that any ROI produced by the agency, either on its own or through a contractor, is adequately developed from which to make a decision on the merits of complainant's complaint.
  
Remedy Following Default Judgment
 
In her decision of January 27, 2005, awarding remedies, AJ-2 reaffirmed the issuance of the default judgment as issued by AJ-1. AJ-1 had ordered that the agency place complainant in each of the three detailed, temporary positions, and in the GS-13 Supervisory Attorney-Advisor position, pay back pay and benefits, correct complainant's leave records, post a notice informing employees of the discrimination finding, and pay compensatory damages and attorney's fees and costs. Evidence in support of complainant's claims was submitted to AJ-2, who then examined complainant's claims with respect to her entitlement to compensatory damages, and her request for attorney's fees.
  
Compensatory damages
 
AJ-2 found that complainant had not established that her requests for reimbursement for past medical costs and past costs for medication expenses were for costs unreimbursable by her medical insurance company, and AJ-2 denied those expenses. AJ-2 also denied complainant's request for the cost of car repairs incurred for an accident on her way to her therapist, finding there was no causal connection between the agency's actions and the visit, as complainant had a long history of seeing therapists, even prior to the discriminatory events.
 
Complainant requested $178,654.14 in non-pecuniary compensatory damages, supported by her testimony, the testimony of friends, family and coworkers, and other receipts. Complainant testified that the agency's actions exacerbated her conditions of depression and eczema, caused emotional distress, and caused severe anxiety and post traumatic stress disorder. She was incapacitated to the point that she began only working part time, and claimed to have experienced humiliation and harm to her professional reputation based on being bypassed for the promotions.
 
AJ-2 found that, taking into account that the award may only compensate complainant for that harm which was directly caused by the agency's actions, and should reflect the nature, severity and the duration of the harm, complainant was entitled to $60,000.00 in compensatory damages.
 
In her brief in support of her cross-appeal, complainant argued that the compensatory damages award was too low as compared to the effects of the agency's discriminatory actions on her, and that the matter of compensatory damages should be remanded to an AJ for a hearing. Alternatively, she argued that she should be allowed to supplement the record, to provide updated evidence regarding the on-going effects of the agency's discrimination on her well-being. She claimed that the emotional distress she experienced spanned seven years and that while she had previously been diagnosed with depression and eczema, the agency's actions exacerbated these conditions nearly to the point of incapacitating her normal functioning in day to day living.
 
We find that the decision of AJ-2 should be affirmed with respect to the totality of the award of compensatory damages for complainant.
  
Attorney's fees and costs
 
The attorney's fees and costs award of $29,026.30 is also affirmed. The agency is required to award attorney's fees for the successful processing of an EEO complaint in accordance with existing case law and regulatory standards. Bernard v. Department of Veterans Affairs, EEOC Appeal No. 01966861 (July 17, 1998). Attorney's fees are computed by determining the lodestar, i.e., the number of hours reasonably expended multiplied by a reasonable hourly rate. 29 C.F.R. § 1614.501(e)(2)(ii)(B); Equal Employment Opportunity Commission Management Directive (MD) 110 at 11-5 (citing Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). All hours reasonably spent in processing the complaint are compensable, and the number of hours should not include excessive, redundant or otherwise unnecessary hours. MD 110 at 11-5 (citing Hensley, 461 U.S. at 434; and Bernard, EEOC Appeal No. 01966861). A reasonable hourly rate is based on prevailing market rates in the relevant community for attorneys of similar experience in similar cases. MD-110 at 11-6 (citing Cooley v. Department of Veterans Affairs, EEOC Request No. 05960748 (July 30, 1998)).
 
Complainant was awarded $27,000.00 in attorney's fees and $2,026.30 in costs. AJ-2 denied the payment of complainant's personal expenses for travel to and lodging at her attorney's office locale. In her brief in support of her cross-appeal, complainant argued that her attorney should be reimbursed at her then-current rate of $250.00 per hour, as opposed to the $225.0 per hour awarded by AJ-2. She also argued that she should receive the fees incurred in during the course of this appeal.
 
We affirm AJ-2 award of attorney fees, and find that AJ-2 properly used complainant's attorney's hourly rate at the time the work was performed to calculate the amount. We note that complainant is entitled to an additional attorney's fees award for the work performed subsequent to the submission of her initial fee petition and that performed in the course of this appeal.
  
The position awarded complainant and restoration of leave
 
Complainant was awarded placement in each of the three temporary detail positions, as well as placement in the GS-13 Supervisor Attorney-Advisor position, effective January 30, 2000. Our decision in Royal v. Department of Veterans Affairs, supra, also noted that in the case of a default judgment a complainant would need to establish a right to relief by "evidence that satisfies the court." In a case such as this, complainant could establish a right to relief by showing that she was qualified for the position at issue, applied and was not selected, and individuals not of her protected class were favored.
 
Our review of the record shows that for the majority of the time period between August 1995 and August 1998, complainant had served in a temporary promotion to Attorney-Advisor, GS-13, along with two younger male co-workers. In June 1998, she applied for an extension to her detail, as two of the three temporary positions were to be further extended. Her two younger male co-workers were selected for the positions in the Manchester Hearing Office. Complainant claims she had far more legal experience than either of the two co-workers, as she had been practicing law for over 20 years at this point. In October 1998, complainant applied for promotion to several open Attorney-Advisor. GS-13, positions in the region, and again, two younger males were selected for the openings in Manchester, while complainant received a position in the New Haven Hearing Office, which was outside of her commuting area. In October 1999, complainant applied for the Attorney-Advisor. GS-13, positions, and the two males from the October 1998 position were again selected. Finally, in February 2000, a selection was made for the Supervisory Attorney-Advisor. GS-13, position in the Manchester Hearing Office, and a male, aged 33, who had been selected for each of the previous positions was selected. We find complainant has satisfied this requirement and is entitled to the relief ordered.
 
Complainant argued on appeal that she should be placed in the positions currently held by the selectees, claiming that any promotions they have received in the meantime, she would also have received absent the discrimination. We find that complainant has not shown that she was entitled to these promotions, and that they were not necessarily the inevitable outcome of each selectee's temporary placement in the GS-13 positions.
 
Complainant notes that AJ-1 ordered that the agency restore her leave records to reflect official time used for preparation for and appearance at the scheduled depositions, and that the agency review and correct complainant's leave records to reflect appropriate "hazard leave" during the winter storm, in accordance with the claims made in her amended complaint on February 12, 2001. We note that AJ-2 seems to have denied complainant payment for eight hours when she was placed in Leave Without Pay (LWOP) status instead of on official time during the EEO proceedings. As this is contradictory to the award of AJ-1, we find that AJ-1 more properly decided that complainant was entitled to this leave restoration.
 
Complainant also claims that all leave that she used as a result of the exacerbation of her depression, which was caused by the agency's actions, should also be restored as part of her back pay award. We find that complainant is entitled to the restoration of any leave taken as a direct result of the agency's discriminatory actions.
  
CONCLUSION
 
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the agency's decision not to implement AJ-1's decision awarding a default judgment to complainant, and CLARIFY the orders of AJ-1 and AJ-2 with regard to the relief ordered.
  
ORDER
 
1. The agency shall place complainant in, and pay back pay for. the following temporary positions: the GS-905-13 Attorney-Advisor position for the 120-day detail running from July 1, 1998 through October 28, 1998; the GS-905-13 Attorney-Advisor position for the detail commencing on October 29, 1998 (as per vacancy announcement 19S-98); and the GS-905-13 Attorney-Advisor position for the 120-day detail running from October 16, 1999 through December 31, 1999. In the event that the agency has already done so, it shall provide proof of its actions to the Compliance Officer, as referenced below.
2. The agency shall promote complainant to the GS-905-13 Senior Attorney-Advisor position, in Manchester, New Hampshire, or into a substantially equivalent position, effective January 30, 2000.
3. The agency shall determine the appropriate amount of back pay, with interest, and other benefits due complainant for the time she would have spent at the temporary GS-13 positions, and for her placement in the permanent GS-13 Attorney-Advisor position, effective January, 30, 2000, pursuant to 29 C.F.R. §1614.501, no later than sixty (60) calendar days after the date this decision becomes final. The 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 within sixty (60) calendar days of the date the agency determines the amount it believes to be due. The complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision."
4. The agency shall make a determination of the leave taken by complainant as a consequence of its discrimination and shall restore that leave to complainant's leave balances. Complainant shall cooperate in aiding the agency in making that determination by providing dates of leave taken as a result of the discrimination and information to link the leave with the discrimination.
5. The agency shall pay $60,000.00 in non-pecuniary compensatory damages in connection with her non-selection.
6. The agency shall pay $29,026.30 in attorney's fees and costs.
7. The agency shall correct complainant's leave records to reflect official time for preparation for and appearance at the scheduled depositions.
8. The agency shall review and correct complainant's leave records to reflect appropriate "hazard leave" during the winter storm.
9. The agency shall post a notice in accordance with the paragraph below.
  
POSTING ORDER (G0900)
 
The agency is ordered to post at its Manchester, New Hampshire facility copies of the attached notice. Copies of the notice, after being signed by the agency's duly authorized representative, shall be posted by the agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (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 ten (10) calendar days of the expiration of the posting period.
  
ATTORNEY'S FEES (H0900)
 
If complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the agency. The attorney shall submit a verified statement of fees to the agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501.
  
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
 
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 (M1208)
 
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 lend 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), 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or opposition must also include proof of service on the other party.
 
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c).
  
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0408)
 
This is a decision requiring the agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the agency, or filed your appeal with the Commission. If you file a civil action, you must name as the defendant in the complaint the person who is the official agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. Filing a civil action will terminate the administrative processing of your complaint.
  
RIGHT TO REQUEST COUNSEL (Z1008)
 
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended. 42 U.S.C. § 2000e et seq.: the Rehabilitation Act of 1973, as amended. 29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File A Civil Action").
 
 
FOR THE COMMISSION:
 
Stephen Llewellyn
Executive Officer
Executive Secretariat
Footnotes

1

We find that, contrary to complainant's assertions, the agency's brief was timely filed with the Commission.