U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Hannah C.,1 Complainant, v. Loretta E. Lynch, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 0720150004 Hearing No. 520-2010-00441X Agency No. BOP-2009-0801 DECISION The Agency filed, pursuant to 29 C.F.R. § 1614.405(a), a timely appeal following its October 10, 2014 final order. On appeal, the Agency requests that the Commission affirm its 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.2 For the following reasons, the Commission AFFIRMS in part and REVERSES in part, the Agency's decision. ISSUES PRESENTED 1. Was the Agency barred from raising timeliness of EEO Counselor contact? 2. Was the AJ's finding that Complainant was subjected to unlawful retaliation when the Agency issued her a proposed suspension and a letter of reprimand and initiated an investigation of her for introduction of contraband supported by substantial evidence? 3. Did the AJ err in awarding Complainant a higher graded position and, if so, was the amount of back pay awarded improper? 4. Did the AJ err by ordering training in the form of corrective action, not only for the supervisors and managers involved in this matter but, also, for each supervisor and manager in the Metropolitan Correctional Center (MCC) in New York? 5. Should the amount of non-pecuniary compensatory damages awarded by the AJ be reduced? 6. Was the AJ's award of attorney's fees reasonable? BACKGROUND At the time Complainant filed her November 10, 2009 complaint, she was working as a Corrections Officer for the Agency's Bureau of Prisons in Atlanta, Georgia where she had been working since July 2008. Complainant had transferred from the Agency's Metropolitan Correction Center (MCC) in New York to Atlanta as part of a May 2008 settlement agreement reached in a prior discrimination complaint that she had filed in 2006 while working in New York as a grade level GS-9 Recreation Specialist.3 After filing her complaint, Complainant's claim was investigated. Subsequent to the investigation, she requested a hearing before an AJ. The AJ held a hearing on October 24-25, 2012, and on December 19, 2012. At the hearing, the AJ identified the claims of the complaint as whether the Agency subjected Complainant to discrimination on the basis of reprisal for prior protected activity when: 1. On May 27, 2008, the Agency issued a Letter Proposing Two Days Suspension for unprofessional conduct and lack of candor based upon an argument between Complainant and her co-workers on March 17, 2007. 2. On July 30, 2009, the agency issued Complainant a Letter of Reprimand for unprofessional conduct based upon an argument between Complainant and her co-workers on March 17, 2007. 3. On February 29, 2008, the Agency referred Complainant's alleged violation of its Standards of Employee Conduct for internal investigation by bringing contraband, i.e., a recording device, into the MCC to collect evidence in support of her federal lawsuit.4 Claims 1 and 2 arose out of an incident at work concerning Complainant's conduct. Regarding claim 3, Complainant brought her personal tape recorder, which was considered contraband by the Agency, into MCC in October 2007 and January 2008 and recorded conversations that she had had with the Associate Warden and her supervisor, a Supervisory Recreation Specialist, in order to obtain recorded information, without their knowledge, regarding her prior complaint of sex-based discrimination. In February 2008, Complainant's attorney delivered copies of the tape recordings to Agency counsel while the prior complaint remained pending. Following the hearings and the submission of post-hearing statements by both parties, the AJ found discrimination and awarded attorney's fee and costs. AJ's Decisions The AJ issued two decisions, one regarding the finding of discrimination with remedies and a second addressing attorney's fees and costs. In the decision finding discrimination and awarding remedies, the AJ found that Complainant's claim regarding the letter or reprimand was timely because Complainant did not receive a letter of reprimand until August 28, 2009, and therefore her EEO Counselor contact was timely on September 4, 2009.5 The AJ next determined that Complainant was in fact alleging a pattern of harassment making any untimely claims timely when she initiated EEO Counselor contact on September 4, 2009. The AJ concluded that Complainant had established a prima facie case of retaliation. The AJ found that she had filed a complaint of harassment based on sex, filed a lawsuit in federal district court on the complaint and ultimately settling the civil lawsuit; that officials involved in the instant complaint were aware of the prior discrimination complaint; that the Agency engaged in adverse treatment against Complainant when it issued the proposed suspension and the letter of reprimand and began investigating her for contraband; and that there was a causal connection between the Agency's actions as evidenced by the temporal proximity of the protected activity and the adverse treatment. The AJ also found that the Agency had articulated legitimate, nondiscriminatory reasons for its actions, noting the Agency's explanations that Complainant had engaged in unprofessional conduct and "lack of candor" and it issued the proposed suspension and reprimand. The AJ also determined that bringing into the MCC a tape recorder, an item considered contraband by Agency regulations and policy, was a violation that warranted an Agency investigation. The AJ concluded that Complainant had established by a preponderance of the evidence that the Agency's reasons were pretextual and were motivated by retaliatory animus. The AJ found that Complainant had provided credible evidence of disparate responses to complaints brought by other employees but not to complaints which she had brought to management and credible evidence of disparate disciplinary treatment and credible evidence of management deviation from standard procedure. In reaching her conclusion, the AJ found testimony by Complainant's previous supervisor at MCC not worthy of belief and described her testimony as inconsistent and evasive. On the other hand, the AJ found Complainant's testimony to be credible. Having found discrimination, the AJ ordered, in relevant part, that the Agency offer Complainant a position with back pay, interest, and benefits or back pay if she declined the offer of a position; and compensatory damages in the amount of $50,000. The AJ also ordered that the AJ provide training to supervisors and management at the MCC. In her decision addressing attorney's fees and costs, the AJ awarded $117,045 in fees and $888.80 in total costs which included $656.36 in costs for Complainant's travel from Atlanta to New York for the hearing plus $216.66 in other costs. Agency's Decision The Agency disagreed with the AJ's finding that Complainant had timely filed her claims with respect to claim 1, the proposed two-day suspension, and claim 3, the contraband investigation claim.6 The Agency concluded, however, that if, on appeal, claims 1 (the May 2008 proposed suspension) and 3 (the March 2008 contraband investigation) were determined to be timely, the Agency was in agreement with the AJ that the Agency had subjected Complainant to reprisal in May 2008, when it proposed her suspension (claim 1) for unprofessional conduct and lack of candor and when on July 30, 2009, it issued a letter of reprimand (claim 2) on the same grounds. Regarding the internal investigation concerning the contraband (claim 3), the Agency rejected the AJ's finding that the Agency had retaliated against Complainant when it subjected her to an investigation on the grounds that the finding was not supported by substantial evidence. Concerning relief ordered by the AJ, the Agency disagreed with the AJ's award, reasoning that $15,000, and not the $50,000 ordered, was adequate to compensate Complainant for the harm suffered. Accordingly, the Agency ordered payment of $15,000 in non-pecuniary, compensatory damages in its decision. The Agency also rejected the back pay award and the scope of the training ordered. With respect to the training, the Agency averred that the AJ erred in authorizing training for all MCC-New York supervisors and the training order was "overly broad." Regarding the attorney's fee award, the Agency determined that the fee award should be reduced by at least 33 percent because the AJ's finding that the Agency's referral of Complainant for an investigation was retaliatory and not supported by substantial evidence. The Agency did not challenge the AJ's award of costs.7 CONTENTIONS ON APPEAL Agency's contentions The Agency reasserts its position in its decision that Complainant failed to initiate EEO counseling within the requisite 45-day limitation period regarding the proposed letter of suspension issued in May 2008, and the contraband claim. The Agency maintains that Complainant did not initiate contact until September 2009 and therefore the EEO Counselor on those two claims was untimely, noting that the claims were discrete acts and at best could only be considered as background evidence in support of a claim for harassment. The Agency also argues that even if the agency investigation into the contraband claim were deemed to be timely, the Agency did not retaliate against Complainant because it had a duty to report a violation of policy and federal regulation. The Agency contends that when Complainant brought the contraband tape recorder into the MCC without authorization, her action constituted a per se violation of 28 C.F.R. § 500.1(h) and Agency policy, Program Statement 3420.09 § 12 regarding bringing contraband into the workplace. The Agency asserts that once Agency Counsel8 became aware of the alleged violation, he reported the incident to the Warden who referred the matter to the Office of Internal Affairs (OIA) in March 2008. The Agency contends that it did not have the authority or discretion to determine whether or not the contraband claim would be investigated because the introduction of contraband could result in criminal prosecution. Concerning the introduction of contraband, the Agency also argues that if it did not investigate the claim, it would have had to move directly towards imposing discipline, thereby depriving Complainant of the due process rights afforded by an investigation. Regarding the AJ's award of $50,000 in compensatory damages, the Agency contends that it is excessive. The Agency also argues that Complainant failed to provide statements or testimony from others to support her claims of emotional distress with statements from friends, family, or medical professionals. The Agency asserts that the medical documentation that Complainant provided did not establish a link between her symptoms and reprisal. The Agency argues also that the cases cited by the AJ to support the compensatory damage award were distinguishable because in the cited cases, the witnesses had provided supporting testimony, unlike in the instant complaint. The Agency also asserts that the AJ clearly considered Complainant's prior discrimination complaint which was settled when the AJ determined a remedy and this consideration was inappropriate. The Agency also challenges the AJ's award of a position to Complainant within her geographical area at the next higher grade level with back pay and interest thereon. It argues that the complaint did not involve a nonselection for a promotion. The Agency also asserts that the AJ did not articulate why Complainant would be qualified for a promotion, relying solely on a single assertion by Complainant that she was training to become a grade level GS-11 Recreation Supervisor. The Agency argues that there were no such positions in the MCC in New York for several years and, also, that when Complainant held the Recreation Specialist position, there was no promotion potential to a GS-11 in that position. The Agency also contends that Complainant failed to provide any evidence that she applied for or qualified for a promotion to the higher grade level. The Agency asserts that the promotion also reflects the AJ's improper consideration of a matter already settled by Complainant's acceptance of a GS-7 position as a Corrections Officer in Atlanta pursuant to the settlement agreement in her prior complaint. The Agency objects to the training provision in the AJ's ordered relief. It argues that the that requiring training for all management employed at the MCC New York was overly broad. Addressing attorney's fees, the Agency contends that the fee determination should be reduced because Complainant should not have prevailed on the timeliness issues and the AJ erred in finding retaliation regarding the contraband claim. The Agency also argues that dismissal of the claims on timeliness would eliminate recovery and therefore, the fee award should therefore be modified to reflect the removal of unsuccessful claims. The Agency also urges that the fee award should be reduced by two thirds but also argues, alternatively, if the claims were found timely the award should be reduced by one third because the AJ's finding of retaliation concerning the contraband was in error, asserting that Complainant's action was a per se violation of federal regulation and Agency policy. Complainant's contentions In her brief on appeal, Complainant argues that the Agency waived the timeliness defense regarding the letter of proposed suspension and the referral to the OIA for the contraband investigation by failing to raise the untimeliness defense prior to the AJ's finding of discrimination. Therefore, the Agency is estopped from doing so on appeal, according to Complainant's argument. Complainant argues alternatively that the claims were timely because they were part of an unlawful pattern of harassment and constituted a continuing violation involving the same Agency officials. Complainant next argues that the AJ's finding that the Agency investigation of Complainant regarding the contraband claim was retaliatory was supported by substantial evidence.9 Complainant asserts that there was no need to conduct an investigation because Complainant had admitted introducing the contraband and also that she had recorded her superiors. Complainant asserts that deferring the investigation while Complainant was still working in MCC in New York; proceeding to investigate Complainant after she had gone to a new position in Atlanta, yet ultimately never making a decision following the Agency investigation; and considering the length of time the Agency took to investigate the contraband claim all evidenced a retaliatory motive as found by the AJ. Complainant contends that the Agency had failed to show by "clear and convincing" evidence that she would not have received a promotion absent the Agency's retaliation. Complainant also contends that prior to the retaliation, she had an exemplary work record; that she had already received one promotion, her evaluations were all good; and that she had no disciplinary record. Also prior to the retaliation which interfered with her promotion potential because of the disciplinary action's presence in her file, Complainant asserts that she was training for promotion to a GS-11 Recreation Supervisor and that she had applied for numerous jobs. Regarding the $50,000 award of compensatory damages, Complainant asserts that it should be upheld because it was supported by substantial evidence and is in line with similar awards. She argues also that the Agency seeks to minimize her pain and suffering unduly; that the emotional distress that she suffered comports with the award and was not "monstrously excessive;" and that the AJ had examined and considered the extent and severity of the pain and suffering that she experienced as a result of the retaliation and evidence concerning her physical symptoms and medical records evidencing the onset of her symptoms. Complainant recounts the pain and suffering caused to her by the retaliation and to which she had testified and as identified in the AJ's decision. These conditions included daily chest pains and migraine headaches lasting several hours; dizziness, blurred eyesight, nausea, nervous stomach causing cramps and diarrhea, depression, loss of appetite, decreased energy, sleeping difficulties, becoming socially withdrawn, and loss of enjoyment in life's pleasures. Regarding the corrective remedy of training, Complainant asserts that the Agency's argument that management officials who were not involved in discriminating against a complainant should not have to undergo training is unavailing. In so arguing, Complainant notes that training is not designed to punish but to educate employees so as to avoid future violations of the law. Addressing the attorney's fee award, Complainant rejects any reduction as unwarranted. She asserts that even if the AJ's finding of retaliation were reversed regarding the contraband, she would still be entitled to the AJ's fee award, noting that Complainant may be considered a prevailing party for purposes of a fee award if she succeeds on any significant issue in litigation which achieves some of the benefit of the party bringing suit. Complainant also asserts that fees may be awarded though some claims are unsuccessful, if the successful and unsuccessful claims are inextricably intertwined. STANDARD OF REVIEW All 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); EEOC Management Directive 110 (MD-110), Ch. 9, § VI.(B). (Aug. 5, 2015). 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 conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. ANALYSIS AND FINDINGS Timeliness of EEO Counselor contact We have held that an agency does not waive its right to dismiss a complaint on the grounds of timeliness merely by accepting and investigating a complainant's complaint. Rodriguez v. Dep't of Defense, EEOC Appeal No. 01953421 (Apr. 25, 1996) citing Oaxaca v. Roscoe, 641 F.2d 386 (5th Cir. 1981). The Commission also recognizes that an agency can raise issues of timeliness at any time prior to a finding of discrimination by an AJ or the agency itself. See Estus v. Dep't of Veterans Aff., EEOC Appeal No. 01962215 (Feb. 16, 1997), req. for recon. denied, EEOC Request No. Dec. 12, 1998); Hill v. General Services Admn., EEOC Request No. 05890383 (Sept. 12, 1989). In the present case, there is no evidence that the Agency raised a timeliness issue prior to the AJ's finding of discrimination as to claim 3. Therefore, consistent with prior decisions, the Agency is estopped from doing so. Merits of claims Complainant maintains that the Agency issued her the proposed suspension and the letter of reprimand and began investigating her for the contraband incident for retaliatory reasons. Regarding the suspension and the letter of reprimand, the Agency conceded in its decision that if EEO Counselor contact was deemed timely, it would accept the AJ's finding that it had retaliated against Complainant by issuing the proposed suspension and the letter of reprimand.10 Accordingly, because the timeliness of EEO Counselor contact cannot now be raised belatedly as an issue, we accept the Agency's finding that it had subjected Complainant to retaliatory discrimination when it issued her the proposed suspension and the letter of reprimand. The Commission therefore next turns to whether there was substantial evidence for the AJ's finding that the investigation into the contraband was engaged in for retaliatory reasons. The Supreme Court explained in Universal Camera that "substantial evidence" is "more than a mere scintilla .... It 'must do more than create a suspicion of the existence of the fact to be established. [I]t must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury ...."' Universal Camera Corp., 340 U.S. at 477 [citations omitted]. Complainant can establish a prima facie case of reprisal by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec. Admn., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, and Coffman v. Dep't of Veterans Aff., EEOC Request No. 05960473 (Nov. 20, 1997), a 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). Complainant maintains that the Agency retaliated against her by investigating the contraband issue. The statutory retaliation clauses prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity. A violation will be found if an employer retaliates against an employee for engaging in protected activity through threats, harassment in or out of the workplace, or any other adverse treatment that is reasonably likely to deter protected activity by that individual or other employees. EEOC Compliance Manual on Retaliation, No. 915.003, at 8-14 through 8-16 (May 20, 1998); Carroll v. Dep't of the Army, EEOC Request No. 05970939 (Apr. 4, 2000). In her decision, the AJ found that Complainant had established a prima facie case of retaliation. The AJ also found that Complainant had established a causal connection between the protected activity and the alleged discrimination. The AJ noted the temporal proximity between Complainant's filing of the prior complaint in federal court in January 2007 and the referral of the incidents that occurred on March 17, 2007 for investigation by OIA. The letter of proposed suspension was not issued by Complainant's supervisor until May 27, 2008, days after Complainant and the Agency had settled the prior complaint. Complainant's supervisor was aware of the settlement immediately thereafter because she was Complainant's supervisor. Complainant transferred to Atlanta in July 2008 pursuant to the settlement agreement. The AJ noted the testimony of the Warden in which he stated that he had made the decision to issue a letter of reprimand as early as June 2008. In August 2008, the Atlanta office was contacted to conduct and interview and obtain an affidavit from Complainant regarding the contraband. There is no dispute that Complainant engaged in prior protected activity. Complainant initiated EEO activity in May 2006 concerning a sex-based discrimination complaint which was not settled until in May 2008. In addition, Complainant did not go to the Agency's Atlanta facility until July 2008, a transfer that was part of the settlement agreement in the prior complaint. Officials aware of the prior complaint were involved in the instant complaint. Complainant had engaged in prior protected activity concerning the settled complaint; Agency officials were aware of the prior protected activity; and the Agency took adverse action against Complainant. Accordingly, an inference can be drawn from the actions taken by the Agency and Complainant's prior protected activity. An inference of reprisal made, the Agency had to then articulate legitimate, nondiscriminatory reasons for its actions. See McDonnell Douglas, supra. Once the Agency has done so, Complainant has to establish that the Agency's reason was pretextual, that is, not the true reason for its actions. The AJ determined that the Agency had articulated legitimate, nondiscriminatory reasons for its actions. Complainant had engaged in unprofessional conduct and lack of candor regarding the proposed suspension and the letter of reprimand. Complainant was subjected to the internal investigation because she had violated Agency policy prohibiting contraband into its facility. The AJ concluded, however, that the preponderant evidence established that the Agency's reasons were pretextual. In so concluding, the AJ determined that Complainant had established pretext by providing credible evidence of disparate responses to complaints by other employees as opposed to how the Agency handled complaints brought by Complainant, credible evidence of management deviation from standard procedure, and credible evidence of disparate disciplinary treatment.11 The AJ also found the overall testimony of Complainant's supervisor at MCC was not worthy of belief. Among the other reasons identified for finding discrimination, the AJ did not credit Agency testimony which the Agency provided regarding the reasons why it had conducted the investigation. 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. See MD-110, Ch. 9, at § VI.B. The Agency has not so shown. In reaching this conclusion, the AJ also found that the Agency had departed from procedure in conducting the investigation, noted the Agency delay in moving forward with the investigation, and its resumption of the investigation after the settlement of Complainant's prior complaint. Regarding the but-for analysis, we find that the decision in Nasser does not require the reversal of the AJ's finding of reprisal regarding the contraband incident in this case. See Nasser, supra; Complainant v. Dep't of Homeland Security, EEOC Appeal No. 0720130035 (Oct. 20, 2015); Petitioner v. Dep't of the Interior, EEOC Petition No. 0320110050 (July 16, 2014). The Agency cannot impose discipline disparately or conduct an investigation with a discriminatory motivation. The substantial evidence of record established that it was discrimination that motivated the Agency to conduct the investigation. As noted earlier, the Agency concedes that it had retaliated against Complainant by issuing the proposed suspension and the letter of reprimand. Thus, the Commission will next address the AJ's award of damages and other ordered relief and remedies. Remedies and corrective action When discrimination is found, the agency must provide the complainant with a remedy that constitutes full, make-whole relief to restore the complainant as nearly as possible to the position she would have occupied absent the discrimination. Franks v. Bowman Transp. Co., 424 U.S. 747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975); Adesanya v. United States Postal Serv., EEOC Appeal No. 01933395 (July 21, 1994). Relief pursuant to Title VII is designed to make "whole" an employee, against whom the Agency has discriminated, by placing the employee "as near as may be, in the situation [she] would have occupied if the wrong had not been committed." Albemarle Paper Co. v. Moody, supra; see also 29 C.F.R, § 1614.501. In West v. Gibson, 119 S.Ct. 1906 (1999), the Supreme Court held that Congress afforded the Commission the authority to award compensatory damages in the administrative process. For an employer with more than 500 employees, such as the Agency, the limit of liability for future pecuniary and non-pecuniary damages is $300,000. 42 U.S.C. § 1981a(b)(3). a. Training The AJ mandated training in her order as part of the corrective action for all MCC's managers in New York. Specifically, the AJ ordered "training managers and personnel employees" to ensure that violations of Title VII would not recur. The AJ ordered that four hours of training be provided to each supervisor and manager in the MCC. The Agency has objected to the ordered training as being overly broad. The Commission has addressed the breadth of training ordered in previous decisions. In Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0720140013 (June 13, 2014), the agency challenged the AJ's remedial order that all managers at two facilities receive discrimination training, arguing that it was an abuse of discretion for the AJ to order discrimination for managers and supervisors not involved in the discrimination. Notwithstanding the Agency's assertions, we found no basis to disturb the AJ's training order in EEOC Appeal No. 0720140013. In Burton v. Dep't of Justice, EEOC Appeal No. 0720090046 (June 9, 2011), a complaint that involved the Bureau of Prisons, the agency took issue with the "overly broad" extent of an order which mandated the training of "every supervisory and managerial staff member" and not only the Warden, whom we determined set the leadership tone for the entire facility. We found no error in Burton in the AJ's issuance of an order requiring five hours of EEO training for all facility management and supervisory staff; nor did we find any abuse of discretion on the part of the AJ. See also Cairo v. Dep't of Justice, EEOC Appeal No. 0720100023 (Jan. 13, 2011)(AJ's order requiring training for "every supervisory and managerial staff member" at a Bureau of Prisons' facility was not disturbed). In the instant case, consistent with the prior decisions cited, we are not persuaded that the AJ's training order needs to be less expansive or that the AJ abused her discretion. Further, as we have observed consistently, training is not designed as a punitive measure or as form of discipline but is a corrective action. b. Promotion and back pay In her post-hearing brief, Complainant asserted entitlement to economic damages in the amount of $12,000 plus 1.5 year's interest to make her whole because she could not obtain a promotion because of the presence of a letter of reprimand in her personnel file. She also sought a promotion to GS-11 as relief, asserting that after the letter of reprimand was removed from her personnel file, she was promoted to a GS-9 and would now be eligible for a GS-11. The award of back pay in Title VII cases is governed by Section 706(g) of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e-5(g). When an agency finds that an employee has been subjected to discrimination, the agency shall provide, among other remedies, an unconditional offer of placement in the position the employee would have occupied but for the discrimination or to a substantially equivalent position. 29 C.F.R. § 1614.501(a)(3). In addition, the agency is required to make payment on a "make whole" basis for any loss of earnings the employee may have suffered as a result of the discrimination. 29 C.F.R. § 1614.501(a)(4). The AJ ordered that the Agency offer Complainant a position at a grade level above her current grade, retroactive to the date Complainant returned to the GS-7 grade level after the terms of her settlement agreement ended in May 2010. If Complainant accepted the offer, the Agency had to provide Complainant back pay from the date she would have entered on duty. If Complainant declined the offer, the Agency was ordered to provide her with back pay from the date when she would have been appointed until the date when Complainant declined the offer. Complainant testified that she applied for several jobs and that the letter of reprimand in her personnel file would have interfered with her obtaining a promotion while it remained in her file. She also stated that she was not promoted and that she had also been training for a supervisory position. We decline to uphold the award of a promotion and back pay in this matter. Complainant may have felt it was futile to apply for positions while the reprimand remained in her file. However, we would have to take too many speculative leaps to reach the result that Complainant was entitled to a promotion and, concomitantly, back pay as part of any make whole relief. Complainant has provided no documentary evidence, other than assertions, that there were jobs available at the time in question; that she applied for any jobs; that she was qualified for the jobs; and that the jobs had promotion potential.12 We also reject Complainant's argument that the Agency had to show by "clear and convincing evidence" that Complainant would not have been selected. This argument is unavailing and inapplicable since the record does not establish that Complainant applied for an available position. See 29 C.F.R. 1614.501(b)(1)(i). c. Compensatory damages In her post-hearing brief, Complainant requested a non-pecuniary, compensatory damage award of $200,000. The AJ awarded $50,000 in non-pecuniary compensatory damages, a sum that the Agency argues should be modified to $15,000. Complainant did not object to the $50,000 award on appeal. Section 102(a) of the 1991 Civil Rights Act authorizes an award of compensatory damages for pecuniary losses, and for non-pecuniary losses, such as, but not limited to, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to character and reputation, and loss of health. See West v. Gibson, supra. In this regard, the Commission has authority to award such damages in the administrative process.13 For an employer with more than 500 employees, such as the agency, the limit of liability for future pecuniary and non-pecuniary damages is $300,000. Id.; 42 U.S.C. § 1981(b)(3)D). Compensatory damages may be awarded for past pecuniary losses, future pecuniary losses, and non-pecuniary losses which are directly or proximately caused by the agency's discriminatory conduct. Enforcement Guidance: Compensatory and Punitive Damages Available under Section 102 of the Civil Rights Act of 1991 (Guidance on Compensatory Damages), EEOC Notice No. 915.002, at 8 (July 14, 1992). A complainant is not entitled to receive compensatory damages for pursuing an EEO complaint. Appleby v. Dep't of the Army, EEOC Appeal No. 01933897 (Mar. 4, 1994). The amount of an award of compensatory damages is based on the following factors: (1) severity of the harm; (2) duration of the harm; and (3) extent to which the harm was caused by discriminatory conduct. Complainant v. Dep't of the Treasury, EEOC Appeal No. 0120123017 (Apr. 24, 2015); Rivera v. Dep't of the Navy, EEOC Appeal No. 01934157 (July 22, 1994), req. for recon. denied, EEOC Request No. 05940927 (Dec. 11, 1995); EEOC's Guidance on Compensatory Damages, at 11-12, 14. The reasonableness of an amount of compensatory damages is measured by whether the award is "monstrously excessive" and consistent with awards in similar cases. Ward-Jenkins v. Dep't of the Interior, EEOC Appeal No. 01961483 (Mar. 4, 1999). (citing Cygnar v. City of Chicago, 865 F.2d 848 (7th Cir. 1989)). Objective evidence of compensatory damages can include statements from the complainant concerning her emotional pain or suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, injury to character or reputation, injury to credit standing, loss of health, and any other non-pecuniary losses that are incurred as a result of the discriminatory conduct. Statements from others, including family members, friends, health care providers, or other counselors (including clergy) could address the outward manifestations or physical consequences of emotional distress, including sleeplessness, anxiety, stress, depression, marital strain, humiliation, emotional distress, loss of self-esteem, excessive fatigue, or a nervous breakdown. Lawrence v. U.S. Postal Serv., EEOC Appeal No. 01952288 (Apr. 18, 1996) (citing Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993)). Evidence from a health care provider or other expert is not a mandatory prerequisite for recovery of compensatory damages for emotional harm. Id.; Sinnott v. Dep't of Defense, EEOC Appeal No. 01952872 (Sept. 19, 1996); Carpenter v. Dep't of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995). A complainant's own testimony, along with the circumstances of a particular case, can suffice to sustain her burden in this regard. Courts have also held that "expert testimony ordinarily is not required to ground money damages for mental anguish or emotional distress." Sanchez v. Puerto Rico Oil Co., 37 F.3d 712, 724 (1st Cir. 1994), citing Wulf v. City of Wichita, 883 F.2d 842, 875 (10th Cir. 1989); Hicks v. U.S. Postal Serv., EEOC Appeal No. 07A10020 (Sept 26, 2003). The more inherently degrading or humiliating the agency's action is, the more reasonable it is to infer that a person would suffer humiliation or distress from that action. The absence of supporting evidence, however, may affect the amount of damages appropriate in specific cases. See Banks v. U. S. Postal Serv., EEOC Appeal No. 07A20037 (Sept. 29, 2003). In the instant appeal, the AJ awarded compensatory damages in the amount of $50,000. In granting the award, the AJ noted that Complainant gave credible testimony regarding the emotional distress that she suffered and, as noted earlier herein, referenced medical tests Complainant underwent. Complainant testified that after receiving the letter of reprimand, she began to experience symptoms similar to those that she experienced following her prior discrimination complaint, including chest pains, headaches, and dizziness. She experienced chest pains on a daily basis that lasted several hours and shortness of breath that made her feel that it was hard for her to breathe. Complainant also testified that she had migraine headaches daily which would last a couple of hours and which required her to sit down. She experienced dizziness, blurred vision, and her eyes would get bleary. She had a hard time sleeping, decreased appetite, nausea, a "nervous stomach" with cramps and diarrhea. Complainant also testified that she was depressed, her energy level was down and she was no longer an outgoing person; was no longer a "real sociable person;" had anger and attitudes in her relationship with men; lost interest in music, an important part of her life; and had a "lot of writer's block" when writing songs and creating music. Complainant testified that she still experiences "ongoing problems" including depression and trouble sleeping. The AJ noted that Complainant testified that she was "stressed out" because she feared that the letter of reprimand in her personnel file was inhibiting her chances of promotion. The AJ noted Complainant's testimony that she felt "depressed" and "stressed" as if the previous discriminatory incident at MCC were re-occurring. The AJ also noted Complainant's testimony that at the time of the hearing, she had not fully recovered from her symptoms because she "always feels like [MCC] is out to get [her], like it's one thing after another." In deciding the award, the AJ considered that Complainant had submitted medical documentation evidencing that she had sought medical attention from a cardiologist, a neurologist and eye specialists concerning her symptoms. Her cardiologist, the AJ recounted, found an abnormal EKG and documented that Complainant was experiencing difficulty breathing and mild shortness of breath. Her eye specialist noted that Complainant was experiencing "black spots" that came and went and dizziness. Her neurologist performed an MRI because of Complainant's history of headaches. In determining whether the amount of the award granted in this case was reasonable, we are guided by the principle that a compensatory damages award is limited to the amounts necessary to compensate Complainant for the actual harm caused by the agency's discriminatory action. Here, we attempt to affix a reasonable dollar value to compensate Complainant for that portion of emotional distress, and related symptoms that were caused by the Agency's discrimination, recognizing that damage awards for emotional harm can greatly vary, there being no definitive rules governing amounts to be awarded, only that awards must be limited to amounts necessary to compensate a complainant for actual harm, even if intangible. Enforcement Guidance on Compensatory Damages at p. 7. We find the $50,000 awarded by the AJ to be supported by substantial evidence and in line with other compensatory damages awards and not "monstrously excessive." This amount takes into account the factors such as severity and the likely duration of the harm done to Complainant as a result of the Agency's action. Complainant provided credible testimony to the AJ concerning how the Agency's discriminatory retaliation affected her physically and emotionally, how it impacted her socially, and how it affected her creative pursuits. The award is not "monstrously excessive" standing alone and is not the "product of passion or prejudice," and is consistent with the amount awarded in similar cases. See De Los Santos v. Environmental Protection Agency, EEOC Appeal No. 0120091233 (July 12, 2012) (complainant subjected to harassment awarded $50,000 for mental anguish, anger, fright, resentment, frustration, loss of self-esteem, irritability, humiliation, embarrassment, anger, betrayal, anxiety, stress, decreased energy, depression, headaches, upset stomach, numbness in limbs, and damage to his character and reputation); Cavanaugh v. U.S. Postal Serv., EEOC Appeal No. 07A20102 (Nov. 12, 2003) (awarding $50,000.00 in non-pecuniary damages where complainant experienced exacerbation of her depression, anxiety symptoms, increased need for medication, marital problems, negative effect on social life and interaction in family relationships, distrust of others, irritability, sleeplessness, and tension headaches); Lindsay v. Dep't of Veterans Affairs, EEOC Appeal No. 0720070016 (July 26, 2007), request for recon. den., EEOC Request No. 0520070874 (Sept. 26, 2007) ($50,000 awarded where complainant experienced stress and weight loss, became withdrawn, lost energy, and interacted less with friends); Bostick v. Soc. Sec. Admin., EEOC Appeal No. 0720120021 (Jan. 16, 2013)($50,000 awarded where complainant experienced mental anguish, migraine headaches, depression, bleeding ulcer and stroke). Accordingly, an award of $50,000 will adequately compensate Complainant for the harm she suffered as a result of the Agency's retaliatory actions.14 Therefore, the Commission sustains the AJ's award of $50,000 in compensatory damages and which is based on substantial evidence. Attorney's fees and costs As an initial matter, the Commission notes that costs will not be addressed because the Agency does not challenge the costs of $888.80 that the AJ awarded. Thus, we review the reasonableness of the fee award only. Complainant submitted a fee request to the AJ initially seeking $115,415 in attorney's fees, and $888.80 in costs. Specifically, Complainant's requested as follows: $550 an hour for 190.7 hours of work performed by lead counsel or $106,755; $300 an hour for 26.5 hours of work for Associate A or $7,950; and $300 an hour for 8.6 hours for Associate B or $2,580. Costs of $888.80 included travel expenses for hearing including plane fare, a rental car, and lodging. Subsequently, Complainant requested an additional $1,925 in fees for work performed in replying to the Agency's opposition to its fee request, bringing the total fee for lead counsel to $117,340 ($115,415+$1,925) and the total fee request, including for work performed by Associates A and B, to $127,870 ($117,340+$7,950+$2,580). In sum regarding the fee request before the AJ, the Agency requested an overall 8.6 hour reduction in the hours expended; that the rate of lead counsel be reduced to $400 an hour; that the hourly rate of Associate A be reduced to $100 an hour prior to her admission to the New York State Bar and $175 hourly thereafter; that 5.9 hours requested for cite checking be reduced to a paralegal rate of $100 an hour; and that fees be reduced by $458.76 to reflect the exclusion of travel expenses for the hearing. In her reply to the Agency's opposition to her fee request, Complainant maintained that the hourly rate be payable at $550 hourly and the reasons why. Complainant stated that she was not contesting the requested reduction in the rate charged for Associate A before her admission to the New York State Bar in January 2011 but that her currently hourly rate for work performed after her admission was $300 as evidenced in lead counsel's declaration submitted with the fee request. Complainant also did not object to being charged an hourly rate of $100 for time spent cite checking by both Associate A and Associate B, but maintained that for other legal work, Associate B should be compensated at $300 an hour. Complainant also asserted that it should be compensated for work done preparing the fee request, contrary to the Agency's objection. The Commission's regulations authorize the award of reasonable attorney's fees and costs to a prevailing complainant. 29 C.F.R. § 1614.501(e). Fee awards are typically calculated by multiplying the number of hours reasonably expended times a reasonable hourly rate, an amount also known as a lodestar. See 29 C.F.R. § 1614.501(e)(ii)(B); Hensley v. Eckerhart, 461 U.S. 424 (1983). All hours reasonably spent in processing the complaint are compensable, but the number of hours should not include excessive, redundant, or otherwise unnecessary hours. A reasonable hourly rate is based on prevailing market rates in the relevant legal community for attorneys of reasonably comparable skill, experience and reputation in similar cases. Blum v. Stenson, 465 U.S. 886 (1984). In determining the degree of success, the Commission will consider all relief obtained in light of a complainant's goals, and, if a complainant achieved only limited success, the complainant should recover fees that are reasonable in relation to the results obtained. Hensley, 461 U.S. at 434. While a reasonable fee should not be determined simply by mathematical formula, hours spent on unsuccessful claims should be excluded from the amount of a reasonable fee. Id. The Commission has held that one method of addressing the appropriate amount of attorney's fees when a complainant is not completely successful is to take a percentage across-the-board reduction of compensable time billed. See Blinick v. Dep't of Housing & Urban Dev., EEOC Appeal No. 07A20079 (Feb. 3, 2004) (citing McGinnis v. Dep't of Defense, EEOC Request No. 05920150 (July 15, 1992)). Courts have held that fee applicants should exclude time expended on "truly fractionable" claims or issues on which they did not prevail. See Nat'l Ass'n of Concerned Veterans v. Sec'y of Defense, 675 F.2d 1319, 1327 n.13 (D.C. Cir. 1982). Claims are fractionable or unrelated when they involve "distinctly different claims for relief that are based on different facts and legal theories." Hensley, 461 U.S. at 434-35. Even if complainant did not prevail on every aspect of her complaint, that does not, in itself, justify a reduction in the hours expended where the successful and unsuccessful claims are closely intertwined. See id. "Claims are fractionable or unrelated when they involve distinctly different claims for relief that are based on different facts and legal theories." Id. The Commission also notes that an attorney requesting the fee award has the burden of proving, by specific evidence, entitlement to the requested fees and costs. Koren v. U.S. Postal Serv., EEOC Request No. 05A20843 (Feb. 18, 2003). The AJ ordered the Agency to pay Complainant's counsel a total of $117,045 in attorney's fees. The total amount requested in the fee requests was $127,870 ($117,340 for lead counsel, $7,950 for Associate A, $2,580 for Associate B).15 The AJ awarded a total of $108,350 to lead counsel. Regarding the award, the AJ offered only that she had reduced the fee of lead counsel by $330, the total amount of time he had expended discussing Complainant's reduction in pay and job promotion.16 As reason for the reduction, the AJ explained that they were not claims that had been alleged. Associate A was awarded a total of $6,715. The AJ noted that Associate A was not yet a member of the New York State Bar when she began working on the complaint in 2010. Thus, the AJ reduced her rate during that time from $300 an hour to $150 an hour for the 6.3 hours of work that she performed in 2010. The AJ also reduced the hourly rate for cite checking that Associate A performed in June 2011 to $100 an hour. Associate B was awarded $1,980. The AJ reduced her hourly rate for cite checking to $100, thereby reducing the requested amount by $600. On appeal, the Agency incorporated all of the arguments in its Opposition to Attorney's Fees submitted to the AJ. The Agency maintains that a reduction in fees is warranted depending on the outcome on appeal of the timeliness of EEO Counselor contact and the retaliation claim concerning the contraband. If the contact is found to be untimely, the Agency contends that the awarded fee should be reduced by at least two thirds. The Agency alternatively argues that if contact is deemed to be timely, the fee award should be reduced by at least one third. The Agency also asserts that the AJ's decision fails to address the Agency's arguments, including the reduction of lead counsel's hourly rates to $400, a reduction in the hourly rate for Associate A, an attorney with less than a year's experience; from $300 an hour to $175 an hour; and time spent preparing the fee request. Complainant prevailed on claims before the AJ on a finding of retaliatory discrimination regarding the proposed suspension, letter of reprimand and the investigation into the contraband. She was therefore presumptively entitled to fees. 29 C.F.R. 1614.501(e)(1)(i). There is a "strong presumption" that the fee amount represents a reasonable fee. 29 C.F.R. §1614.501(e)(2)ii(B). "In limited circumstances, this amount may be reduced or increased in consideration of the degree of success, quality of representation, and long delay caused by the agency." Id. The AJ reduced the overall fee request from $127,870 to $117,045 or by $10,915, a reduction that included adjusting the hourly rate for Associate A and reducing the hourly rate for time expended on citation checks. We find the award reasonable, Complainant having prevailed on the underlying basis of retaliation, the suspension, the letter of reprimand and the investigation. Complainant provided proper documentation for the calculation of fees for work done and for hourly rates charged and submitted affidavits regarding prevailing market rates. See Spencer v. Dep't of the Treasury, EEOC Appeal No. 07A10035 (May 6, 2003). In addition, we have held that time spent preparing and litigating a fee petition can be charged. See Childs v. Dep't of Veterans Affairs, EEOC Appeal No. 01994951 (May 16, 2002); Gray v. U.S. Postal Serv., EEOC Request No. 05981074 (Oct. 5, 2001); Black v. Dep't of the Army, EEOC Request No. 05960390 (Dec. 9, 1998). Although in setting forth such items as credentials and experience in a fee petition, counsel does not have to craft such contents anew each time a fee petition is prepared, we find the time expended by Complainant in this matter to be reasonable. As a final matter, Complainant is also entitled to additional attorney's fees and costs for work performed in the course of this appeal. A petition should be submitted in accordance with the order below. CONCLUSION After a careful review of the record in its entirety, including consideration of all statements and contentions submitted on appeal and statements and evidence not specifically referenced, we REVERSE the Agency's finding of no discrimination regarding the investigation, and its reduction in the award of compensatory damages and attorney's fees. We AFFIRM the finding of discrimination regarding the proposed suspension and letter of reprimand and the award of attorney's fees. We also AFFIRM the Agency's finding regarding promotion and back pay The Commission directs the Agency to provide relief consistent with the Administrative Judge's decisions and as modified and restated in the Order below. ORDER To the extent that the Agency has not already done so, the Agency is ORDERED to undertake the following remedial actions within 120 days (unless otherwise specified) of the date on which this decision becomes final: 1. The Agency shall rescind the proposal to suspend and letter of reprimand and expunge all the retaliatory actions from Complainant's personnel files. The Agency shall provide documentation regarding these actions in its report of compliance as referenced below. 2. The Agency shall pay Complainant $50,000 in non-pecuniary compensatory damages. 3. The Agency shall pay Complainant attorney's fees in the amount of $117,045 and costs in the amount of $888.80. 4. The Agency shall provide at least four hours of training to each supervisor and manager in the Metropolitan Correctional Center in New York, inclusive of the Warden who issued the reprimand, the Associate Warden, and Complainant's previous supervisor at MCC-New York. The training shall consist of providing information regarding management responsibilities under EEO laws, particularly the anti-retaliation provision of Title VII. The training shall be provided within 60 days of the date when this decision becomes final. 5. The Agency shall consider taking appropriate disciplinary action against Complainant's previous supervisor. The Commission does not consider training to be disciplinary action. 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 for not imposing discipline. If Complainant's previous supervisor is no longer employed by the Agency, the Agency shall provide documentation of the departure date. The Agency shall submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation that the corrective action has been implemented. POSTING ORDER (G0914) The Agency is ordered to post at its Metropolitan Correctional Center in New York, New York copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (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 (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden, Director Office of Federal Operations 3-10-16 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. 2 An agency must take final action within 40 days of receipt of the hearing file and the administrative judge's decision. 29 C.F.R. § 1614.110(a). If the agency's final action does not fully implement the administrative judge's decision, the agency must simultaneously file an appeal. In a May 6, 2014 Order Entering Judgment, and an April 28, 2014 Decision, the AJ found discrimination and awarded compensatory damages and other relief, providing notice in the Decision of the 40-day limitation period. Subsequently, the AJ issued an Order Regarding Attorney's Fees and Costs on September 3, 2014. Apparently, the AJ's decision finding discrimination and awarding remedies was bifurcated. The bifurcation is evidenced in the Agency Memorandum Explaining the Final Order. Therein, the Agency noted the AJ's May 30, 2014 email confirmation that the 40-day period to implement the AJ's decision would not begin to run until the AJ had issued her supplemental decision on attorney's fees. 3 Under the terms of the settlement agreement, Complainant began working in a GS-7 Corrections Officer position but with retention of her grade GS-9 salary for two years. It appears that by October 2011, Complainant was working as a GS-9 Recreation Specialist in Atlanta. 4 Elsewhere in the record, early March 2008 dates are mentioned and not the February 29, 2008 date. 5 It appears that the AJ raised the timeliness of EEO Counselor contact sua sponte. 6 The Agency addressed harassment only as it related to timeliness of the claims. 7 In an October 10, 2014 Memorandum Explaining Final Order, the Agency noted that it would not challenge the award of $888.80 in costs, which consisted of $656.36 associated with Complainant's travel to New York for the hearing and $232.44 in other costs. 8 Agency Counsel refers to the Agency representative in Complainant's prior discrimination complaint. 9 On August 8, 2013, according to the Agency, the AJ requested, and it submitted, an analysis of Complainant's claims under the "but for" standard in University of Texas Southwestern Medical Center v. Nassar, 570 U.S. ___, 133 S.Ct. 2517 (2013). 10 In an October 10, 2014 Memorandum Explaining the Final Order, the Agency stated that, if timeliness of the claims is found, substantial evidence supported the AJ's finding that Agency officials issued both the proposed suspension letter and the letter of reprimand in retaliation for her protected activity. 11 The AJ set forth the evidence supporting her findings of pretext at length in her decision and we see no reason to reiterate them. 12 The AJ noted that Complainant's supervisor acknowledged that a personnel file containing a suspension could hinder chances for a promotion. 13 Compensatory damages do not include back pay, interest on back pay, or any other type of equitable relief authorized by Title VII. 14 See Adams v. Dep't of Health and Human Svcs., EEOC Appeal No. 0120112249 (Mar. 19, 2013)(lack of medical testimony or documentation in the record reduced what could have been a higher amount awarded in damages). 15 The fee petition identifies the number of hours by hourly rates spent by counsel and two associates and totals the amount as $115,415. Later, the same fee petition reflects an amount requested of $116,265 for the attorney's fee. In her decision awarding fees, the AJ notes that Complainant was requesting $116,265 in attorney's fees. However, because the bill worksheet provided by Complainant provides a total of $115,415, with a detailed breakdown of hours expended by lead counsel and the two Associates on specific days, we determine the initial fee request to be $115,415. 16 This time apparently relates to the prior complaint and the terms of the settlement agreement. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0720150004 23 0720150004