Zoila P.,1 Complainant, v. Loretta E. Lynch, Attorney General, Department of Justice (Executive Office of the U.S. Attorneys), Agency. Appeal No. 0720130036 Hearing No. 430-2010-00566X Agency No. USA200900166 DECISION Following its August 19, 2013, final order (FAD), the Agency and Complainant filed timely appeals.2 The Agency requests that the Commission affirm its partial acceptance and partial rejection of an Equal Employment Opportunity Commission 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. The Agency also requests that the Commission affirm its rejection of certain relief ordered by the AJ. Complainant requests that the Commission increase the AJ's award of attorneys' fees and costs to Complainant. For the following reasons, the Agency's FAD is AFFIRMED in part, and REMANDED in part. ISSUES PRESENTED 1. Is the AJ's finding that Complainant was subjected to disparate treatment sex discrimination and reprisal in not receiving a time-off award for her 2008 job performance supported by substantial evidence? 2. Is the AJ's finding that Complainant was denied a transfer request because of reprisal for her EEO activity supported by substantial evidence? 3. Is the AJ's award of $33,000.00 in compensatory damages to Complainant for harm suffered in being denied a transfer request and for comments made regarding her EEO activity supported by substantial evidence? 4. Is the AJ's award of $228,170.50 in attorney's fees and $26,827.59 in costs supported by substantial evidence? BACKGROUND Complainant was an Assistant United States Attorney (AUSA) at the U.S. Attorney's Office in Las Vegas, Nevada. Complainant was employed with the Agency in this capacity since May 30, 2000. AJ Decision, p. 1. At all times relevant to this complaint, the Deputy Chief Assistant U.S. Attorney, White Collar Crimes Group, was Complainant's first-line supervisor (S1); the Criminal Section Chief was Complainant's second-line supervisor (S2); the First Assistant U.S. Attorney was Complainant's third-line supervisor (S3); and the U.S. Attorney for the District of Nevada was Complainant's fourth-line supervisor (S4). AJ Decision, p. 11. In approximately 2008, Complainant alleged that she was subjected to inappropriate sex-based comments by her supervisor, S1. These included past incidents where Complainant alleged that S1 "made comments to her which disparaged her life choices" due to her gender and parental status. AJ Decision, p. 13. Following an incident during which S1 admittedly yelled at Complainant on December 5, 2008, Complainant reported her allegations of sex discrimination to S2 and S3. AJ Decision, p. 13. Following her report, an internal EEO investigation commenced, which resulted in a recommendation that Complainant be transferred from under the supervision of S1. AJ Decision, p. 17. However, Complainant's transfer request was denied on January 8, 2009. AJ Decision, p. 18-19. Following this, Complainant sent a written request to S4 on January 21, 2009, asking for reconsideration of the transfer request. AJ Decision, p. 24. On January 21, 2009, S4 met with Complainant, and during the meeting, allegedly made comments to Complainant to the effect that she had made a mistake in filing an intra-office EEO complaint. AJ Decision, p. 25. Complainant filed a formal EEO complaint on March 13, 2009, alleging that the Agency discriminated against her on the bases of sex (female) and reprisal under Title VII when: 1. On or about December 5, 2008, and after, Complainant did not receive a time-off award for her job performance in 2008; 2. On or about January 8, 2009, Complainant's request for a transfer from the supervision of S1 was denied. Complainant also alleged that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity under Title VII when: 3. In January 2009, the United States Attorney, S4, displayed a hostile attitude toward Complainant and made disparaging comments about the relative merits of, and Complainant's judgment in engaging in, her prior EEO activity. At the conclusion of an investigation into the allegations, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an AJ. Complainant timely requested a hearing, which the AJ held on August 1-3 and December 5-8, 2011. The AJ issued a decision on July 9, 2013.3 The relevant portions of the AJ's findings are as follows. First, the AJ concluded that Complainant did not receive her time-off award for her 2008 job performance as a result of sex discrimination and retaliation. The AJ concluded that shortly following her December 5, 2008 EEO conduct, Complainant did not receive her time-off award for which she had been approved and fully qualified to receive. AJ Decision, p. 36. Complainant also demonstrated that two male AUSA's under the same supervisor received time-off awards for their 2008 job performance under circumstances sufficiently similar to those affecting Complainant. AJ Decision, p. 42. In reaching this conclusion, the AJ struck the Agency's legitimate, non-discriminatory, reason for not granting Complainant a time-off award as a sanction for the Agency's failure to timely comply with written and oral orders. AJ Decision, p. 37, 42. Second, the AJ concluded that Complainant was denied her transfer request because of reprisal for her EEO activity.4 AJ Decision, p. 36. The AJ found that this occurred shortly after her December 5, 2008, EEO activity which was known to management, and that S1 denied the request "so that people in the office would not think that there was any validity to Complainant's EEO discrimination allegations against him," which was a reason directly related to Complainant's EEO conduct. AJ Decision, p. 36. Third, the AJ concluded that the January 21, 2009, comments of the U.S. Attorney, S4, constituted reprisal for Complainant's EEO activity. AJ Decision, p. 38. The AJ explained that during the January 21, 2009, meeting with Complainant, S4 "told Complainant that he felt she had made a mistake in filing an intra-office EEO complaint against her supervisor ... and that she had 'lost all credibility' with him and the rest of the office as the resulting EEO investigation did not substantiate her discrimination claims." AJ Decision, p. 37. The AJ reasoned that this comment, amongst others, constituted per se reprisal because they "served to discourage the use of the EEO process." Id. at 38. Prominent portions of the AJ's remedial order included: (1) $33,000.00 in non-pecuniary compensatory damages; and (2) $228,170.50 in attorneys' fees and $26,827.59 in costs. The Agency subsequently issued an FAD accepting the AJ's final order in part, and rejecting it in part. The Agency rejected the AJ's findings that: (1) Complainant was subjected to sex discrimination and reprisal in being denied her time-off award; and (2) Complainant was subjected to reprisal in being denied her request for transfer. FAD, p. 1-2. The Agency also rejected portions of the AJ's remedial order: (1) that the Agency consider permanently removing the responsible management officials from their managerial positions; and (2) that the Agency consider convening all employees during working time and have one of the responsible management officials read the notice of discrimination to employees. FAD, p. 2. Finally, the Agency disagreed with the AJ's award of compensatory damages in excess of $10,000; attorney's fees in excess of $152,121.27; and costs in excess of $17,885.95. These are the matters raised in the Agency's instant appeal. The Agency accepted the AJ's finding that the Agency retaliated against Complainant when on January 21, 2009, S4 made inappropriate negative comments concerning Complainant's EEO activity during a meeting with Complainant. FAD, p. 1. The Agency also accepted the AJ's decision that the Agency did not discriminate against complainant based on her sex when it denied her request for a transfer to another supervisor on January 8, 2009. FAD, p. 1. Complainant appealed the $228,170.50 in attorney's fees and $26,827.59 in costs awarded to her by the AJ. See Complainant's Brief In Support Of Attorneys' Fees and Costs (Complainant's Appeal Of Fees and Costs). Complainant accepts the other facets of the AJ's decision. CONTENTIONS ON APPEAL I. AGENCY'S CONTENTIONS ON APPEAL The Agency accepted some portions of the AJ's decision and declined to adopt other portions. The Agency argued that the AJ: (1) abused her discretion by issuing a sanctions order that struck the Agency's evidence of a legitimate nondiscriminatory reason for not issuing Complainant a time-off award; (2) erred by finding the Agency retaliated against Complainant when it initially denied her transfer request; (3) erred by issuing an excessive and inappropriate compensatory damage award; (4) erred by issuing excessive awards for attorneys' fees and costs; and (5) erred by issuing a relief order that exceeded the scope of her authority. Agency's Brief In Support Of Appeal (Agency's Brief), p. 1. The Agency also argues that Complainant's former attorneys do not have standing to appeal the AJ's award of attorneys' fees. See Agency Opposition to Appellant's Motion to Substitute Her Former Attorneys as Parties to This Litigation (Agency's Opposition). II. COMPLAINANT'S CONTENTIONS ON APPEAL A. Attorneys' Fees & Costs Complainant's attorneys appeal the award of attorneys' fees issued by the AJ. See generally, Complainant's Appeal of Fees and Costs. They argue that the AJ's decision to apply across the board reductions in attorneys' fees and costs was an abuse of discretion. Complainant requests that the Commission award $347,362.03 in attorneys' fees and $27,139.66 in costs to Firm 1, serving as lead counsel. Further, Complainant requests that the Commission award $93,492.59 in attorneys' fees and $5,784.14 in costs to Firm 2, serving as second chair. In support of the attorneys' fees appeal, Complainant argues that the AJ erred in determining that the retention of Firm 2 as out of state counsel experienced in federal sector matters was inappropriate; in failing to award Firm 2 the prevailing market rate in the Washington, D.C., area; in finding that the number of attorneys used in the case was excessive; and in imposing an across the board reduction in fees where the claims all involved a common core of facts and actors and a common theme of gender discrimination and retaliation for protected EEO activity. Complainant's Appeal of Fees and Costs, p. 3-4. B. Other Issues Complainant requests to re-caption the case to reflect only her attorney's names in order to avoid any ethical conflicts in her new position.5 See Complainant's Brief in Support of Request to Re-caption Case, p. 1. Complainant requests complete withdrawal from the case, and assignment to her representatives of any and all rights and responsibilities related to the appeal of attorneys' fees and costs. Id. In support of this request, Complainant and her attorneys entered into a contractual agreement, which ended their lawyer-client relationship, and purportedly assigned to her attorneys the right to pursue an appeal of attorneys' fees. Complainant accepts the Agency's award of $10,000 in non-pecuniary compensatory damages and waives her right to seek declaratory or monetary relief beyond this amount. Complainant's Response to Agency's Brief in Support of Appeal (Complainant's Response), p. 2. Complainant contends that the AJ properly struck the Agency's legitimate, nondiscriminatory, reason for denying Complainant's time-off award in 2008 as a sanction for failing to timely submit discovery documentation. Id. at 2-14. Complainant urges that the AJ appropriately took this action because of the Agency's repeated failure to timely submit discovery. Complainant's Response, p. 7. Complainant raised this argument solely to persuade the Commission to preserve the AJ's finding of discrimination such that attorneys' fees could be awarded. Complainant's Response, p. 2. ANALYSIS AND FINDINGS I. STANDARD OF REVIEW Post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. 29 C.F.R. § 1614.405(a). Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. EEOC Management Directive 110 (MD-110), Ch. 9, § VI.B. (Aug. 5, 2015). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. MD-110, Ch. 9, § VI.B. The following discussion evinces that the AJ's factual findings are supported by substantial evidence and further that her conclusions of law were correct. The discussion is limited to issues that Complainant and the Agency raised on appeal. II. THERE IS SUBSTANTIAL EVIDENCE IN THE RECORD TO SUPPORT THE CONCLUSION THAT COMPLAINANT WAS SUBJECTED TO SEX DISCRIMINATION AND REPRISAL FOR HER EEO ACTIVITY IN NOT RECEIVING A TIME-OFF AWARD FOR HER 2008 JOB PERFORMANCE The Agency argues that the AJ abused her discretion by striking the Agency's legitimate, nondiscriminatory, reason as a sanction for not complying with her discovery orders. Agency's Brief, p. 10. When a complainant or agency fails to comply with an AJ's order, an AJ may take action against the non-complying party pursuant to 29 C.F.R. § 1614.109(f)(3), up to and including issuing a decision in favor of the opposing party. See 29 C.F.R. § 1614.109(f)(3)(iv). Before sanctions are imposed, the Commission requires the AJ to issue an order to the offending party that makes clear that sanctions may be imposed and the type of sanction that could be imposed for failure to comply with an order unless the party can show good cause for that failure. See Rountree v. Department of Treasury, EEOC Appeal No. 07A00015 (July 13, 2001). A showing that the non-complying party acted in bad faith is not required. See Cornell v. Department of Veterans Affairs, EEOC Appeal No. 01974476 (Nov. 24, 1998). Furthermore, sanctions must be tailored in each case to appropriately address the underlying conduct of the party being sanctioned. See Hale v. Department of Justice, EEOC Appeal No. 01A03341 (Dec. 8, 2000). A sanction may be used to deter the non-complying party from similar conduct in the future, as well as to equitably remedy the opposing party. Id. If a lesser sanction would suffice to deter the conduct and to equitably remedy the opposing party, an AJ may be abusing her discretion in imposing a harsher sanction. See Pacheco v. United States Postal Service, EEOC Appeal No. 01970691 (Nov. 25, 1998); see also, Germain v. Environmental Protection Agency, EEOC Appeal No. 07A10048 (Dec. 23, 2002) (upholding AJ's issuance of decision in complainant's favor as a sanction for the agency's failure to show good cause for its failure to comply with AJ's orders); Janda v. United States Postal Service, EEOC Appeal No. 07A10018 (March 4, 2002) (upholding AJ's issuance of decision in Complainant's favor as a sanction for agency's failure to respond to complainant's discovery requests in accordance with AJ's order compelling responses and failure to respond to AJ's order to show cause). The AJ ordered production of a list of documents in a July 2011 written order prior to commencement of a hearing. These documents included documents relating to Complainant's assignment on a case, and also award information for a comparative employee. The AJ noted at the commencement of the hearing on August 1, 2011 that the documents were not included with the Agency's submission, and also noted this on August 2, 2011, which was the second day of the hearing. See August 1, 2011 Hearing Transcript, p. 49 (Complainant's counsel referencing the fact that the case documents were not part of the documents produced by the Agency while they were part of the AJ's original orders); see also, August 2, 2011 Hearing Transcript, p. 45 (AJ stating "I will note that I didn't see anything in this document indicating minutes for [the case] which was a subject specifically of my order"). The Agency produced the documents on the third day of the hearing, August 3, 2011, and the AJ subsequently sanctioned it by striking evidence of the Agency's legitimate, nondiscriminatory, reason for not giving Complainant a time-off award. AJ's Decision, p. 37. As an explanation for the delayed production, the Agency indicated that "officials preparing the production inadvertently omitted five pages from a stack of computer records due to a U.S. Attorney's Office employee's inability to mentally recall the list of employees who were under [the] Deputy Criminal Chief['s]...supervision during the relevant time period..." Agency's Brief, p. 6-7. However, the AJ indicated that the Agency failed to produce the documents because it sought to substitute its own judgment for the judgment of the AJ. Agency's Brief, p. 8. The record reveals that the Agency's failure to timely produce the documents on the first day of the trial was not the first instance in which the Agency delayed discovery of the particular documents in question. Complainant's Response to Agency's Brief In Support Of Appeal, p. 8. During the discovery period prior to hearing, the AJ issued two notices to show cause for why sanctions should not be issued because the Agency did not timely comply with discovery deadlines. See Complainant's Response To Agency's Brief In Support Of Appeal, p. 7 (noting that the AJ issued a notice to show cause for the Agency's untimely submission of a settlement report and the Agency stated that it was "due to inadvertence" and "an oversight" by Agency counsel); see also, Id., p. 7 (noting that the AJ issued a second notice to show cause for the Agency's insufficient discovery responses regarding the time-off award claim). The Agency argues that exclusion of the specific documents that were produced late would have sufficed to deter the conduct and to equitably remedy the opposing party. Id. at 16. According to the Agency, there was no prejudicial effect against Complainant because even though the documents relating to the case Complainant worked on, and information regarding a comparator were not produced during the first three days of the hearing, the Agency produced them in time for the last three days of hearing. Agency's Brief, p. 15. However, the AJ indicated that on day three of the hearing when the Agency finally produced the documents, certain witnesses had already testified and neither Complainant's counsel nor the AJ had the documents for use at the time of the testimony. Agency's Brief, p. 8. The Agency's argument that these witnesses could have been recalled if necessary does not undo the fact that the hearing was impacted by the fact that the Agency did not timely submit the documents. Agency's Brief, p. 17. Regarding a lesser sanction than drawing an adverse inference against the Agency, it is unclear how the exclusion of the documents that the AJ requested to be produced would deter the Agency from further noncompliance with her orders or equitably remedy the opposing party, as the Agency asserts it would. The documents in question related to the case on which Complainant worked, and for which S1 did not prepare a memo required for her to receive the time-off award in question, while male comparators received an award for their work. AJ Decision, p. 29-30. These were documents that might have been beneficial to Complainant's case. Therefore, there is no indication that the AJ abused her discretion in striking the Agency's legitimate, nondiscriminatory, reason from the record. The AJ's finding that Complainant was subjected to sex discrimination and reprisal in not being issued a time-off award for her 2008 work performance is supported by substantial evidence in the record. III. There is substantial evidence in the record to support the AJ's finding that Complainant was subjected to reprisal when her transfer request was denied The AJ found that Complainant was subjected to reprisal for prior EEO activity in initially being denied a transfer request to another supervisor on January 8, 2009. The Agency argues that the "short period of time," approximately two weeks, before the transfer was actually granted, did not constitute "adverse action" that is "reasonably likely to deter EEO activity." See Agency's Brief, p. 19-20. Reprisal claims are considered with a broad view of coverage. See Carroll v. De't of the Army, EEOC Request No. 05970939 (Apr. 4, 2000). Retaliatory actions that can be challenged are not restricted to those which affect a term, condition, or privilege of employment. See Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53 (2006). Rather, a complainant is protected from any discrimination that is reasonably likely to deter protected EEO activity. See EEOC Compliance Manual, § 8, "Retaliation," No. 915.003 (May 20, 1998; see also, Carroll, supra. Complainant may establish a prima facie case of reprisal by showing that: (1) she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). Second, the burden is on the Agency to articulate a legitimate, nondiscriminatory, reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Third, should the Agency carry its burden, Complainant must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the Agency were not its true reasons, but were a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804; St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993). The AJ concluded that S1 "decided to deny Complainant's request for reasons directly related to Complainant's EEO conduct: so that people in the office would not think that there was any validity to Complainant's EEO discrimination allegations against him." AJ Decision, p. 36. The AJ found that S1 "reasoned that if Complainant was required to remain under his supervision, others in the office would be less likely to conclude that he had actually committed the acts of alleged discrimination of which he had been accused by Complainant." AJ Decision, p. 36-37. The record reveals that S2, Complainant's second-line supervisor, did not agree with S1's assessment that granting Complainant's transfer request would pose any "appearance" or other difficulties. AJ Decision, p. 18. Higher-level management officials and the Agency's own internal EEO investigators also recommended that Complainant be transferred from S1's supervision. AJ Decision, p. 16-17. However, S1's opinion regarding the transfer was decisive and resulted in the Agency's initial denial of her transfer request. AJ Decision, p. 18. Additionally, the AJ noted that the subsequent draft memo which represented the Agency finally agreeing to allow Complainant to transfer "falsely stated that the Agency's internal EEO investigation concluded that there was no evidence to support Complainant's EEO claims." AJ Decision, p. 26. Clarifying drafts reflected that the EEO investigation found many of Complainant's allegations to be untimely, not that they were unfounded. AJ Decision, p. 26. The AJ also noted that a January 15, 2009, recording of a meeting between Complainant, S1, and S2 revealed that Complainant's transfer request was denied due to her articulating her claims of discrimination against S1. AJ Decision, p. 23. The AJ noted that, based on a recording of the meeting, she concluded that S1 and S2 informed Complainant that her transfer request had been denied due to her EEO claims, and not because Complainant was "angry, belligerent, confrontational or defiant" as S1 and S2 claimed. AJ Decision, p. 23. A denial of a transfer request lasting approximately two weeks, especially under the factual circumstances of this case, is reasonably likely to deter EEO activity. See, e.g., Jordan v. U.S. Postal Service, EEOC Appeal No. 01A22072 (Sept. 4, 2002) (assuming for the purposes of its analysis that a delay of several months in granting a transfer request to another office constituted an adverse employment action); Burlington Northern & Santa Fe Ry. Co., 548 U.S. at 67-70 ("The significance of any given act of retaliation will often depend upon the particular circumstances ... an act that would be immaterial in some situations is material in others."). Complainant had engaged in recent EEO activity on December 5, 2008, known to S1 and other management officials, and wanted to remove herself from the supervision of S1. Complainant's December 5, 2008, EEO activity resulted from prior comments by S1, and an incident on December 4, 2008, during which S1 yelled at Complainant. AJ Decision, p. 12. Complainant reported to S2 and S3 that S1 was prejudiced against women, especially working mothers of small children, and had made comments to her which disparaged her life choices. AJ Decision, p. 13. S1 privately reported to his supervisors that he had "raised his voice and been improper/inappropriate in his conduct directed at Complainant." AJ Decision, p. 12. S1 also reported that he had made some comments in the past to Complainant to the effect that she should stay at home with her kids, but that Complainant had taken the statement out of context. AJ Decision, p. 13. Given the situation in which Complainant found herself, the denial of a transfer request, even for a period of two weeks, could be reasonably likely to deter an employee in Complainant's position from engaging in EEO activity. Therefore, there is substantial evidence in the record to support the AJ's conclusion that Complainant was subjected to reprisal in being denied a transfer from S1's supervision because the decision to deny the transfer request was a direct result of her EEO activity. Further, the denial of the transfer request could deter a reasonable employee from engaging in EEO activity. IV. COMPENSATORY DAMAGES The AJ awarded Complainant $33,000.00 in non-pecuniary damages solely for the following claims that Complainant was successful in proving: (1) retaliation for the denial of Complainant's transfer request in January 2009; and (2) per se retaliation for S4's comments disparaging Complainant and her EEO participation.6 AJ Decision, p. 62. The Agency challenges $22,000 of the AJ's award, contending that the appropriate amount is $10,000. 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)). Complainant's own testimony, along with the circumstances of a particular case, can suffice to sustain her burden in this regard. The more inherently degrading or humiliating the agency's action is, the more reasonable it is to infer that a person would suffer humiliation or distress from that action. Id. The absence of supporting evidence, however, may affect the amount of damages appropriate in specific cases. See Banks v. U.S. Postal Service, EEOC Appeal No. 07A20037 (Sept. 29, 2003) (citing Lawrence, EEOC Appeal No. 01952288). The AJ awarded Complainant $33,000.00 in non-pecuniary damages as a result of pain and suffering from the Agency's discriminatory actions. The AJ found that Complainant experienced temporary spikes in emotional upset, including feeling horribly upset and disheartened, uncomfortable, dejected, beaten down, distraught, concerned, afraid of what might happen, devastated, terrible, like her career was irrevocably damaged, sick/nauseated and like she had been punched in the gut due to the instances of discrimination that she was able to prove in the instant complaint. AJ Decision, p. 61. The events causing this were the denial of her transfer request and her January meeting with S4 during which S4 made comments deemed to be per se retaliation. See AJ Decision, p. 61. The AJ indicated that Complainant's award was discounted due to other non-discriminatory incidents that caused or contributed to most of Complainant's mental and emotional symptoms, and those allegations of discrimination that were untimely. AJ Decision, p. 62. Upon review, we find that the Agency's argument for a further reduction of non-pecuniary damages is without merit. The AJ's award of non-pecuniary compensatory damages is not excessive standing alone, and is consistent with awards in similar cases. See for example, Turner v. Dep't of the Interior, EEOC Appeal Nos. 01956390 and 01960518 (April 27, 1998) ($40,000 in non-pecuniary damages for physical pain, loss of enjoyment of life and loss of health sustained by appellant as a result of harassment); Flowers v. U.S. Postal Service, EEOC Appeal No. 01A43114 (Oct. 7, 2004) ($20,000 awarded where, despite other contributing factors, the Agency's discrimination caused complainant to suffer sleeplessness, depression, emotional distress, anxiety, loss of enjoyment of life and strained family relationships); Farrell v. Dep't of the Treasury, EEOC Appeal No. 07A20043 (May 5, 2003) ($20,000 awarded where complainant suffered "emotional distress, insomnia, anxiety, stress, depression, marital strain, humiliation, loss of self-esteem, fatigue, embarrassment, mental anguish, loss of enjoyment of life, and injury to relationships with family"). Therefore, the AJ's award of $33,000.00 in non-pecuniary compensatory damages is supported by substantial evidence in the record and affirmed. V. ATTORNEYS' FEES AND COSTS Complainant requests $473,778.40 in attorneys' fees and costs; $440,854.62 in total attorneys' fees and $32,923.80 in costs. This represents $347,362.03 in attorneys' fees and $27,139.66 in to Firm 1, serving as lead attorney; and $93,492.59 in attorneys' fees and $5,784.14 in costs to Firm 2, serving as second chair. The Agency requests that the AJ's award of attorneys' fees and costs be reduced to $152,121.27 in attorneys' fees, and $17,885.95 in costs. A. Complainant's Former Attorneys Appeal For Attorneys' Fees And Costs Title VII authorizes an award of attorneys' fees to a prevailing party. 29 C.F.R. § 1614.501(e)(1). A prevailing party for this purpose is one who succeeds on any significant issue, and achieves some of the benefit sought in bringing the action. Davis v. Dep't of Transp., EEOC Request No. 05970101 (Feb. 4, 1999). An attorney lacks standing to contest an AJ's award of attorneys' fees apart from a complainant's right to appeal the matter to the Commission. Scott v. Dep't of Energy, EEOC Appeal No. 0720070018 (Apr. 24, 2007); see also, Raney v. Dep't of Veterans Affairs, EEOC Appeal No.01A51839 (2005) (dismissing appeal solely filed by a complainant's former attorney and concluding the attorney does not have standing to file an appeal for attorney fees); Crews v. Dep't of Defense, EEOC Appeal No. 0120111196 (Aug. 22, 2012) (dismissing appeal after determining that it was filed solely by former attorney and attorney did not have standing to file an appeal for attorneys fees because attorney was not a party in the case). Complainant's attorneys submitted "Assignment Agreements" indicating that Complainant "assign[ed] the right to pursue and defend an appeal" of the AJ's award of attorneys' fees to Firm 1 and Firm 2. See November 12, 2013, and November 15, 2013, Assignment Agreements (Assignment Agreements). Apart from this, the Assignment Agreements state that Complainant "irrevocably withdraw[s] from the case"; "waive[s] all related rights and interests in the outcome of this litigation"; and "immediately upon execution of this Agreement, the relationship between the Firm and the Client shall come to a complete end." See Assignment Agreements. The Assignment Agreements in this case evince the fact that Complainant withdrew from pursuing an appeal of the AJ's award of attorneys' fees, and terminated her lawyer-client relationship with Firm 1 and Firm 2. See Assignment Agreements. Complainant's former attorneys cannot pursue this appeal on their own because they are not the prevailing parties in this case and therefore lack standing to pursue an appeal on the sole issue of attorneys' fees without the participation of Complainant. See for example, Crews v. Dep't of Defense, EEOC Appeal No. 0120111196 (Aug. 22, 2012). Therefore, Complainant's former attorneys' putative appeal on the sole issue of attorneys' fees and costs cannot be entertained. B. AJ's Award of Attorneys' Fees and Costs To Complainant The Agency argues that the AJ's award of attorneys' fees and costs is "excessive in light of the AJ's findings as to the scarcity of evidence of harm resulting from the specific conduct found to be discriminatory." Agency's Opposition, p. 3. The Agency argues that, because the AJ disallowed attorneys' fees for work of nine additional attorneys from Firm 2, fees for support staff, such as paralegals and legal assistants, should likewise be disallowed. Agency's Brief, p. 29. Next, the Agency argues that an additional across-the-board reduction of 33% should be applied to the $228,170.50 which the AJ awarded in attorneys' fees because of the AJ's findings that the case was overly-litigated, that Complainant did not need to retain Washington D.C., counsel, and the level of success in the case. Agency's Brief, p. 29. Finally, the Agency argues that these same set of facts support an additional 33% reduction in the $26,827.59 which the AJ awarded in costs. Attorneys' fees will be computed by determining the "lodestar": the number of hours reasonably expended multiplied by a reasonable hourly rate. MD-110, Ch. 11, § VI.F.1. The number of hours should not include excessive, redundant, or otherwise unnecessary hours. Id. A reasonable hourly rate is based on "prevailing market rates in the relevant community" for attorneys of similar experience in similar cases. Id. 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. MD-110, Ch. 11, § VI.F.1. Successful and unsuccessful claims are not fractionable when they are closely intertwined and involve the same common core of facts. See Mannon v. U.S. Postal Service, EEOC Appeal No. 0720070074 (Apr. 4, 2012). If a party does not find counsel readily available in the locality of the case with whatever degree of skill that may reasonably be required, it is reasonable that the party go elsewhere to find an attorney. See Harden v. Soc. Sec. Admin., EEOC Appeal No. 0720080002 (Aug. 12, 2011) (citing Southerland v. U.S. Postal Service, EEOC Appeal No. 01A05403 (Oct. 16, 2002)). The burden is on the Agency to show that a complainant's decision to retain out-of-town counsel was unreasonable. Id. A reasonable fee award may be assessed in light of factors such as: (1) the time required (versus time expended) to complete the legal work: (2) novelty or difficulty of the issues: (3) the requisite skill to properly handle the case; (4) the relief sought and results obtained: and (5) the nature and length of the attorney-client relationship. See Cerny v. Dep't of the Army, EEOC Request No. 05930899 (Oct.19, 1994). Further, a prevailing complainant is entitled to recovery of costs. 29 C.F.R. § 1614.501(e). "Costs must be proved in the same manner as fees are, and the complainant must provide documentation, such as bills or receipts." MD-110, Ch. 11, § VI.E. The AJ reasoned that the hourly billing rates of lead counsel in Firm 1, second chair in Firm 2, and a number of associate attorneys should be reduced. These reductions are supported by substantial evidence in the record because of the affidavits submitted by comparative attorneys attesting to their hourly billing rates. See, e.g., AJ Decision, p. 71. Further, the AJ disallowed fees for several associates who worked on the case because their requests for fees were unsupported, that is, no affidavits or other information were submitted, and that the case was over-litigated and did not require representation from two separate firms. AJ Decision, p. 78. The AJ's conclusion to disallow fees for the specific work of these associates is supported by the record because supporting documentation was not submitted for the hourly rates of the associates, and the case did not present issues that required the services of eleven attorneys from two separate law firms. The AJ also applied across-the-board reductions of 50% for all attorney non-travel hours incurred prior to May 6, 20117 due to vague, duplicative, and excessive billing, and billing for non-meritorious and fractionable claims. This reduction is supported by substantial evidence in the record because of several vague entries on Complainant's fee petition, the fact that Complainant sought reimbursement for attorney work performed on her behalf in a separate case against the Agency, and the AJ's conclusion that unnecessary and excessive legal work was done in this case such as depositions of several witnesses for extensive periods of time. AJ Decision, p. 82-83. The AJ applied only a 40% reduction to attorney hours claimed subsequent to May 6, 2011. The AJ also applied across the board reductions of 50% for the hours of paralegal and law clerk services for the period prior to May 6, 2011, and a 40% reduction of hours for the period after May 6, 2011, to address duplicative and excessive billing. The Agency argues that paralegal and law clerk services of Firm 2 should be disallowed because the AJ disallowed attorneys' fees for associates of Firm 2. See Agency's Brief, p. 29. Because the AJ already accounted for duplicative and excessive billing by applying across the board reductions to the allowable hours of work performed by paralegals and law clerks, it would be inequitable to completely disallow fees for support staff such as paralegals and law clerks of Firm 2. Finally, the AJ's award of $26,827.59 in costs is supported by substantial evidence in the record due to the documentation provided by Complainant's counsel. The Agency's argument that an additional 33% reduction should be applied to costs due to Complainant's "limited success" in the case is not persuasive, because the AJ already took this into consideration. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the AJ's award of $228,170.50 in attorneys' fees and $26,827.59 in costs is supported by substantial evidence in the record.8 The Agency's final decision therefore is AFFIRMED in part, and REVERSED in part. The complaint is REMANDED for compliance with this decision and the Order of the Commission, below.9 ORDER Within one hundred and twenty (120) calendar days from the date this decision becomes final, to the extent it has not already done so, the Agency is ORDERED to take the following actions: 1. Pay to Complainant non-pecuniary compensatory damages in the amount of $33,000.00. 2. Compensate Complainant for all applicable benefits which she was denied, including lost leave, for the three (3) eight-hour days of paid time-off award Complainant earned for her job performance in 2008, but was not given. 3. Prejudgment interest shall also be paid on lost back pay and benefits, at the annual percentage rate or rates established by the U.S. Secretary of the Treasury under 26 U.S.C 6621(a) and 5 C.F.R. § 550.806(d) and (e). Interest shall be paid from the dates Complainant was eligible or entitled to such additional compensation to the date that the monetary amount is paid by the Agency. 4. Remit attorneys' fees and costs to Complainant as a prevailing party in the amount of $228,170.50 in fees and $26,827.59 in costs. 5. Provide training to the supervisors and managers cited as the management officials responsible for unlawfully discriminating and retaliating against Complainant, together with those managers who were involved in receiving and responding to Complainant's workplace concerns raised on and after December 4, 2008, regarding the supervisors and managers cited in the AJ's decision as responsible management officials. Said training shall include an explanation of their responsibilities, on behalf of the Agency, with respect to eliminating discrimination in the federal workplace under Title VII with special emphasis on sex discrimination and retaliation. 6. The Agency shall consider taking appropriate disciplinary action, up to and including removal, against the supervisors cited as the responsible management officials in the AJ's decision. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the compliance officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure date(s). 7. The Agency shall consider permanently removing the responsible management officials from their supervisory/managerial positions.10 8. Post at the U.S. Attorney's Office, Las Vegas, Nevada, copies of the notice discussed below. 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 all of the corrective action has been implemented. POSTING ORDER (G0914) The Agency is ordered to post at the U.S. Attorney's Office in Las Vegas, Nevada, 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)), 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 (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 (M0815) 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, 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 (R0610) 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 (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 Complainants Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden, Director Office of Federal Operations 11-24-2015 __________________ 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 Complainant's appeal was docketed and closed noting that the appeals were consolidated and Complainant's arguments will be addressed in the present Commission decision. Complainant v. Dep't of Justice, EEOC Appeal No. 0120133346 (Nov. 26, 2013). 3 The reason for the delay in issuing this decision is not readily apparent from the record. 4 The AJ concluded that Complainant did not establish that she was denied a transfer request because of her gender since she did not produce direct evidence of sex discrimination, nor did she provide any evidence that similarly-situated male comparators were treated more favorably. AJ Decision, p. 41. 5 As previously stated, all federal sector Commission decisions reflect a pseudonym in place of the complainant's name; therefore, there is no need to consider changing the case caption. 6 The AJ did not award compensatory damages for her finding that the Agency subjected Complainant to sex discrimination and retaliation in not issuing Complainant a time-off award for her 2008 job performance. AJ Decision, p. 60-61. The AJ concluded that Complainant suffered little or no emotional distress after she found out about the denial of the time-off award in April 2011. Id. 7 On May 6, 2011, the AJ granted Complainant's Motion to Withdraw parental status as a basis for her discrimination claims and granted the Agency's Motion for Partial Dismissal. AJ Decision, p. 3. As a result of this ruling, six of Complainant's claims were dismissed as untimely, as some of them dated back as far as 2002. AJ Decision, p. 2-3. 8 The Agency's repeated assertions that the AJ ignored her own factual findings is hardly supported given the AJ's 109 page decision, with an approximately 50 page analysis devoted to attorneys' fees and costs. 9 The Order instructs the Agency to fully implement the AJ's decision, with the exception of having S1 or S4 read the Notice of the finding of discrimination out loud to staff. 10 The Agency contends that the AJ exceeded the scope of her authority by ordering the Agency to consider removing the responsible management officials from their supervisory/managerial positions. Agency's Brief, p. 30. The Agency takes issue with the fact that the AJ "pinpoint[ed] a specific disciplinary recommendation in this case." Agency's Brief, p. 30. "Each agency shall take appropriate disciplinary action against employees who engage in discriminatory practices." 29 C.F.R. § 1614.102(a)(6). The decision on whether to take this action is still within the discretion of the Agency. Therefore, the AJ did not exceed the scope of her authority by ordering consideration of specific discipline. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 07-2013-0036 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013