U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mirta Z.1 Complainant, v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency. Appeal No. 0720150035 Hearing No. 551-2013-00224X Agency No. SEA-12-0504-SSA DECISION Both parties filed appeals to the Equal Employment Opportunity Commission (EEOC or Commission) regarding the decisions and orders of an Equal Employment Opportunity Commission (EEOC) Administrative Judge (AJ). Specifically, simultaneously with the issuance of its July 15, 2015, final order, the Agency filed a timely appeal. On appeal, the Agency requests that the Commission affirm its rejection of the AJ's 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 the relief ordered by the AJ. Additionally, Complainant appealed the AJ's determination of compensatory damages. For the following reasons, the Commission REVERSES the Agency's final order. ISSUE PRESENTED The issue presented is whether the AJ abused his discretion when he sanctioned the Agency with default judgment, and ordered it to pay Complainant compensatory damages and provide other relief because it did not provide documents during discovery that it asserted were protected by the attorney-client privilege. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Case Technician/Legal Assistant, GS-6, in the Agency's Seattle, Washington office. Complainant first initiated counseling regarding these matters on April 25, 2012. In a formal complaint dated June 7, 2012, and through subsequent amendments, Complainant alleged that the Agency harassed and discriminated against her based on race (African-American) and in reprisal for prior protected EEO activity under Title VII when: 1. On April 30, 2012, the group supervisor informed Complainant that she could no longer listen to music with headphones while working, while other employees were allowed to use headphones for this purpose; and she was accused of ignoring her group supervisor in March 2013 while listening to her earphones, which in turn raised issues of interpersonal skills and participation in connection with Complainant's work performance review; 2. During February and March 2013, Complainant was denied union representation during meetings with the group supervisor regarding performance reviews; she was accused of being disrespectful on March 19, 2013, in responding to inquiries by her supervisor; and her supervisor accused her of being unprofessional when she sent an email to an administrative judge; 3. In November 2013, a contractor falsely accused her of not complying with his request to provide Agency documents and otherwise engaged in acts of workplace hostility; 4. On April 23, 2012, Complainant received an Official Reprimand for Conduct Unbecoming of a Federal Employee; 5. On May 3, 2012, Complainant was subjected to a leave restriction interview and counseling by the group supervisor about her alleged abuse of sick leave privileges; 6. On October 15, 2012, Complainant was issued a proposed suspension by the group supervisor, and then suspended for insubordination, which occurred on September 11, 2012, regarding her refusal to perform her assigned work; and 7. In November and December 2012, Complainant was accused of refusing to perform her assigned tasks and was yelled at by the group supervisor; her supervisor met with an Agency Administrative Law Judge to complain about Complainant's performance shortcomings; and her supervisor began monitoring her work performance and workplace conduct. After the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. On January 2, 2014, Agency counsel submitted discovery responses to Complainant's representative. The Agency's discovery packet included a privilege log that listed evidence that the Agency maintained could not be submitted because they were protected by the attorney-client privilege. On February 4, 2014, Complainant filed a motion to compel the Agency to produce documents that the Agency maintained were protected by attorney-client privilege. Complainant maintained that the AJ should order the Agency to share this evidence with her because this evidence was relevant to her case. Complainant also maintained that the Agency produced evidence on defective compact discs in response to discovery requests, which made it difficult to conduct full and complete depositions of three witnesses. Additionally, Complainant requested that sanctions be imposed against the Agency for failing to participate in full discovery. On February 14, 2014, the Agency responded in opposition to Complainant's motion. On May 7, 2014, a status hearing and case management conference was held, and in a Prehearing Report and Order dated May 7, 2014, the AJ ruled that the Agency must submit its privilege log to the AJ for review in camera2 on or by May 28, 2014. The AJ also ruled that Agency counsel must submit to him for review in camera a declaration that outlines the nature and extent of her involvement in any of the matters at issue, including the names of officials and managers with whom she discussed any such matter. The AJ further ruled that discovery would close on September 2, 2014. On May 28, 2014, the Agency submitted a privilege log and declaration from Agency counsel for in camera review of the asserted attorney-client material. On June 3, 2014, the AJ issued an Amended Prehearing Report and Order in which he ruled, in pertinent part, that the Agency must submit its privilege log for review in camera on or before May 28, 2014;3 Complainant could depose a witness; the Agency may depose Complainant; the Agency must submit readable or viewable discovery responses to Complainant by May 28, 2014; Complainant's Motion to Amend her complaint to include incidents that occurred in January and February 2014 was denied; Agency counsel must submit a statement by May 28, 2014, outlining the nature and extent of her involvement in any of the matters at issue; and discovery would close on September 2, 2014. On July 9, 2014, following his review of the log, the AJ issued a Pre-Hearing Order in which he directed the Agency to produce to Complainant within 10 days all documents listed on its privilege log that were dated before September 13, 2013, the date of Complainant's hearing request.4 The AJ noted that during the informal counseling stage and the investigation, the Agency representative should not have a role in shaping the testimony of witnesses or the evidence gathered by the EEO investigator, and there must be proper distance or separation maintained between the Agency fact-finding and defensive functions in EEO cases. The AJ found that the Agency had impermissibly violated these principles when its defense attorneys participated in the EEO investigative process prior to Complainant's request for a hearing. On July 17, 2014, the Agency filed a Motion for Reconsideration with the AJ. On July 18, 2014, the AJ informed the Agency that he planned to deny its Motion for Reconsideration, and reiterated his belief that Agency counsel improperly intruded upon the investigative process of the EEO complaint. On September 25, 2014, the AJ issued an Order to Show Cause why the Agency should not be sanctioned for its failure to produce the documents it claimed were protected by the attorney-client privilege. The AJ's Order stated that if, without good cause, the Agency failed to provide the requested documents within 15 days of receipt of his Order, the AJ would impose sanctions, including the sanction of a decision in favor of Complainant. On October 15, 2014, the Agency responded to the Order to Show Cause, arguing that it had correctly asserted privilege and had not waived that privilege. AJ's Preliminary Decision on October 23, 2014 On October 23, 2014, the AJ issued a "preliminary decision" in which he sanctioned the Agency with default judgment in favor of Complainant on all accepted claims because it failed to comply with his Order to Show Cause issued on September 25, 2014, and in the interest of preserving the integrity of the EEO process. The AJ noted that a hearing on damages would be scheduled thereafter, and a scheduling conference would be held on November 11, 2014. The AJ subsequently held a hearing on damages on January 28, 2015. AJ's June 4, 2015, Decision on Liability In a decision dated June 4, 2015, the AJ noted that he reviewed the Agency's privilege log in camera, and that the log consisted of 93 pages5 and 738 entries of documents, communications, notes, and memoranda "gathered throughout the period of the investigation of Complainant's complaint and prior to Complainant's request for a hearing." The AJ concluded that the log was "opaque, provided no transparency, and left the impression that the investigation was not impartial." The AJ further concluded that ample distance was not maintained between the fact-finding and defense counsel functions of thee Agency; Agency defense counsel intruded into or gave the impression of intruding into the investigation and deliberation phase of the EEO investigation; and Agency defense counsel appeared to influence or coach management and other witnesses. Regarding damages, the AJ first determined that to remedy the discrimination, the reprimand, suspension, and leave restrictions of April, May, and October 2012 must be rescinded. The AJ also found that the Agency must pay Complainant back pay and interest for any pay Complainant had lost, plus interest, because of her suspension in November 2012, from the date she suffered the loss of pay until she returned to work. Additionally, the AJ ordered the Agency to post a notice of discrimination at its Seattle offices; to review and revise EEO policies and practices to comply with Commission regulations that provide that complainants are entitled to a fair and impartial investigation of their complaints; and to ensure Agency counsel take steps to refrain from intruding into the investigative phase of the EEO process, and/or do not give the impression of intruding into the investigative phase of the process prior to the submission of a request for a hearing. Further, the AJ found that Complainant was not entitled to an award for attorney's fees because her representative was not admitted to practice law in any jurisdiction. The AJ also noted that Complainant testified that she suffered stress, headaches, and sleeplessness because of the Agency's discriminatory actions. However, the AJ determined that Complainant had considerable difficulty linking her stress, headaches, and sleeplessness to the matters on which the AJ found discrimination. The AJ concluded that Complainant's testimony was "unworthy of belief" because she appeared to be nervous testifying; was defensive, arrogant, and evasive; and her testimony was uncorroborated, vague, and incoherent at times, as well as including references to claims and allegations contained within a subsequent action she instituted that involved a different period of time, different witnesses, and different management officials. The AJ further noted that Complainant's testimony appeared to be rehearsed and scripted, and the demeanor of her voice indicated that she contrived or fabricated incidents, including name-calling and other verbal exchanges to exaggerate or embellish the gravity of her stress and sleeplessness. Nevertheless, the AJ found that based on Complainant's testimony and Commission precedent, the Agency must pay her $6,000 in non-pecuniary compensatory damages. The AJ also noted that Complainant did not provide any evidence of pecuniary damages. The Attorney-Client Privilege Log The record contains a copy of the Agency's 92-page "privilege log of withheld documents for in camera review." The log identifies documents by type (email, attachment, standalone), title, date, recipient/sender/copied recipient, privilege status (withheld), and reason for the asserted privilege (attorney-client communications, attorney work-product, litigation preparation). The log indicates that there were at least 174 emails, 78 attachments, and 490 standalone documents claimed as privileged by the Agency. The titles of the documents cited as privileged include documents the Agency entitled "Case Summaries;" "[Complainant] Weingarten PDF;" "EEO Cases;" "Case Status-All;" "Our discussion;" "Incidents;" "Hostile Work Environment;" "[Complainant], Draft of proposal for long-term suspension;" "Request for ADR;" "Douglas Factors;" "Complaint against [Complainant];" and "[Complainant's] complaint." The log indicates that the documents were produced from February 24, 2012, until August 22, 2013, but there are several documents for which there is no designated date. CONTENTIONS ON APPEAL On appeal, the Agency maintains that Complainant's cross-appeal should be dismissed as untimely. The Agency argues that the AJ abused his discretion when he issued summary judgment in favor of Complainant as a sanction. The Agency maintains that, in this case, Agency counsel was not involved in the EEO investigative process, and that the documents at issue were protected by the attorney-client privilege. The Agency further maintains that it made reasonable efforts to comply with the AJ's order by submitting a privilege log that demonstrated good cause for its non-disclosure of documents protected by the attorney-client privilege, as well as a sworn counsel declaration denying involvement in the investigation. The Agency maintains that the AJ only superficially reviewed its privilege log, instead of conducting an appropriate in camera inspection of the documents in their entirety. The Agency also maintains that only its head, the Commissioner, can waive privilege, which was not done in this case. Additionally, the Agency contends that the imposition of the sanction of default judgment in favor of Complainant is an "inappropriately harsh response to an ordinary discovery dispute about whether documents are privileged or should be disclosed" because Complainant did not incur any costs or fees related to the assertion of privilege, and such a sanction is unlikely to deter the assertion of the privilege in future cases. Further, the Agency maintains that the AJ's damage award is unsupported by substantial evidence because Complainant did not offer any credible evidence of psychological or physical harm, such as witnesses to corroborate her claims. The Agency notes that Complainant only offered her own "incredible testimony" that she suffered from mental distress and headaches from the moment she began working for the Agency, and the AJ found that her testimony was "unworthy of belief" because it strained credulity and appeared to be rehearsed. On appeal, Complainant maintains that the AJ's default judgment in her favor is justified as a sanction for the Agency's failure to provide the ordered discovery documents. However, Complainant maintains that the AJ erred in finding that her testimony regarding non-pecuniary damages was not credible, and therefore, she should be provided with additional compensatory damages. ANALYSIS AND FINDINGS Timeliness of Complainant's Appeal EEOC Regulation 29 C.F.R. § 1614.403(a) provides that appeals to the Commission must be filed within 30 days of receipt of the Agency's final action. Additionally, the regulations provide that if an appellant does not file an appeal within the time limits, the appeal will be dismissed as untimely. 29 C.F.R. § 1614.403(c). Unless a complainant is represented by an attorney of record, the 30-day time limit for filing an appeal is calculated from the receipt of the required document by the complainant. 29 C.F.R. § 1614.402(b). Upon review, we note that the Agency issued its final order and notice of appeal on July 15, 2015. The final order notified Complainant of the 30-day time-limit for filing appeals and contained an attached Form 573 appeal form. A copy of the U.S. Postal Service certified-mail receipt reflects that Complainant received the final order on July 18, 2015. However, Complainant did not submit her notice of appeal within 30 days of receipt of the Agency's final order, or by August 17, 2015. Instead, the record reveals that, on August 24, 2015, Complainant submitted to the Commission a Motion to Show Cause and a request for additional time to file an appeal. Although Complainant noted in the Motion to Show Cause that she planned to file a future cross-appeal of the AJ's decision with the Commission, she did not express an intent to file an appeal at that time. Instead, Complainant's next submission was on September 11, 2015, when she submitted an Opening Brief of Cross Appellant. In this brief, Complainant asked the Commission to affirm the AJ's default judgment in her favor as a sanction and to reverse the AJ's decision regarding the exclusion of some witnesses and the award of damages. This is the first submission to the Commission within which Complainant expressed a present intent to file an appeal, but it was well beyond the 30-day time limit for submitting an appeal. Complainant contends that the time-limit should be extended because the AJ and Agency failed to provide her with a copy of the hearing record in a timely manner. While the time limits set forth in the Commission's regulations are subject to waiver, estoppel, and equitable tolling, 29 C.F.R. § 1614.604(c), we find that this failure did not impact Complainant's ability to timely file a notice of appeal. Unlike the situation when a complainant requests reconsideration, a complainant filing an appeal is not required to simultaneously submit her supporting brief. Cf. 29 C.F.R. § 1614.45(c) (party requesting reconsideration must establish clear error in, or substantial impact of, appellate decision). Rather, a complainant may file an appeal without a copy of the hearing record, and subsequently request an extension of time to file a brief if she believes that the delay in providing the hearing record impacts her ability to prepare the brief. Accordingly, we find that the Agency's or AJ's failure to transmit the hearing record in a timely manner does not toll the time-limit for filing an appeal; nor did the Commission grant Complainant's request to extend the time for filing. Therefore, we dismiss Complainant's cross-appeal as untimely. Failure to Comply with AJ's Order The Commission's regulations afford broad authority to AJs for the conduct of hearings. See 29 C.F.R. § 1614.109 et seq.; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (MD-110), Ch. 7, § III(D) (Aug. 5, 2015). An AJ has inherent powers to conduct a hearing and to issue appropriate sanctions, including a default judgment. See id.; Matheny v. Dep't of Justice, EEOC Request No. 05A30373 (Apr. 21, 2005); Rountree v. Dep't of the Treasury, EEOC Appeal No. 07A00015 (July 17, 2001). Discretionary abuse occurs when a judge issues a sanction despite the Agency's demonstration of good cause for its actions and its reasonable efforts to comply with a discovery order. Steen v. Dep't of the Army, EEOC Appeal No. 07A20033 (July 28, 2033). Further, the Commission has the authority to issue sanctions in the administrative hearing process because it has been granted, through statute, the power to issue such rules and regulations that it deems necessary to enforce the prohibition on employment discrimination. See Waller v. Dep't. of Transportation, EEOC Appeal No. 0720030069 (May 25, 2007), request for reconsideration denied, EEOC Request No. 0520070689 (Feb. 26, 2009). In this respect, the Commission has determined "that delegating to its Administrative Judges the authority to issue sanctions against agencies, and complainants, is necessary and is an appropriate remedy which effectuates the policies of the Commission." Id. Our regulations provide that where a party fails to respond to an order of an AJ, the AJ may, as appropriate, act against the non-complying party pursuant to 29 C.F.R. § 1614.109(f)(3). An AJ may: (1) draw an adverse inference that the requested information would have reflected unfavorably on the non-complying party; (2) consider the requested information to be established in favor of the opposing party; (3) exclude other evidence offered by the non-complying party; (4) issue a decision fully or partially in favor of the opposing party; or (5) take other action deemed appropriate, e.g., payment of costs and expenses by the non-complying party. Id. Generally, an AJ must first issue a Notice to Show Cause to the non-complying party before sanctioning the party. MD-110, Chap. 7, § III(D), n. 6; see DaCosta v. Dep't of Education, EEOC Appeal No. 01995992 (Feb. 25, 2000). In this case, the AJ issued an Order to Show Cause that required the Agency to explain why it should not be sanctioned for failing to produce the documents it claimed were protected by the attorney-client privilege. The AJ's Order stated that if, without good cause, the Agency failed to provide the requested documents within 15 days of receipt of his Order, the AJ would impose sanctions, including the sanction of a decision in favor of Complainant. The Agency responded to the Order to Show Cause, but steadfastly refused to provide the documents to Complainant. The Agency maintains that the withheld documents are protected by the attorney-client privilege. However, as noted by the AJ, the nature of the withheld documents is only vaguely revealed by the privilege log. The privilege log entries contain a brief notation of the record type (email, standalone, or attachment), the date sent, the sender, the recipients, privilege status (privileged/withheld), and privileged reason (confidential attorney client communications or attorney work product). We conclude that the Agency's privilege log is nothing more than a cryptic list of titles of documents and senders/recipients that does not reveal the validity of the Agency's assertion of the attorney-client privilege. As such, we cannot find that the Agency has demonstrated that it properly asserted the attorney-client privilege. The Agency maintains that the AJ deprived it of the opportunity to submit the complete documents to him for in camera review. However, the Agency could have submitted the complete documents to the AJ at any time, including in its response to Complainant's discovery request; in its response to Complainant's Motion for Sanctions; at the status hearing; or on its own initiative. Instead, the Agency relied upon a nebulous log to justify its failure to comply the AJ's order. It is the Agency's burden to justify its assertion of the privilege, and therefore, it should have taken the initiative to submit documentation sufficient to ascertain whether it properly asserted the privilege. United States v. Lopez, 777 F.2d 543 (10th Cir. 1985). For example, the Agency could have submitted entire documents to the AJ for in camera review, or produced a much more detailed log. Consequently, we find that the Agency has not provided good cause for its assertion of the attorney-client privilege in this case, and that the AJ did not abuse his discretion when he sanctioned the Agency for failing to comply with his order to provide the requested discovery documents to Complainant. Imposition of Sanctions Now, we must determine whether the AJ abused his discretion in finding that default judgment in favor of Complainant was the proper sanction for the Agency's failure to comply with his order. In general, the Commission has held that sanctions, while corrective, also can prevent similar misconduct in the future and must be tailored to each situation, applying the least severe sanction necessary to respond to the party's failure to show good cause for its actions, as well as to equitably remedy the opposing party. See Gray v. Dep't of Defense, EEOC Appeal No. 07A50030 (Mar. 1, 2007); Rountree v. Dep't of the Treasury, supra; Hale v. Dep't of Justice, EEOC Appeal No. 01A03341 (Dec. 8, 2000). The Commission's interest lies in deterring the underlying conduct of the non-complying party, and protecting its administrative process from abuse by either party to ensure that agencies, as well as complainants, abide by its regulations. See Royal v. Dep't of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009). The factors pertinent to "tailoring" a sanction, or determining whether a sanction is, in fact, warranted, include: (1) the extent and nature of the non-compliance, including the justification presented by the non-complying party; (2) the prejudicial effect of the non-compliance on the opposing party; (3) the consequences resulting from the delay in justice, if any; and (4) the effect on the integrity of the EEO process. Gray v. Dep.t of Defense, supra; Voysest v. Social Security Admin., EEOC Appeal No. 01A35340 (Jan. 18, 2005); Royal v. Dept. of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009). In this case, the AJ determined that default judgment in favor of Complainant was the appropriate remedy. The Agency's failure to comply with the AJ's order without good cause is a serious matter that threatens the integrity of the EEO process and impairs the ability of the Commission to remedy violations of EEO law. Likewise, withholding potentially relevant evidence from the record deprives complainants of the opportunity for a full and fair adjudication of their claims.6 The seriousness of failing to abide by an AJ's order is underscored by the fact that EEO regulations provide that when a party fails to comply with an AJ's order, an AJ may act against the non-complying party, up to and including issuing a decision in favor of the opposing party. See 29 C.F.R. § 1614.109(f)(3)(iv). The Commission has previously upheld the issuance of a default judgment as a sanction for agencies' failure to comply with orders issued by an AJ. See Germain v. Environmental Protection Agency, EEOC Appeal No. 07A10048 (Dec. 23, 2002) (upholding the AJ's issuance of a decision in complainant's favor as a sanction for the agency's failure to show good cause for its failure to comply with the AJ's orders to produce the complaint file and to show cause); Janda v. U.S. Postal Service, EEOC Appeal No. 07A10018 (Mar. 4, 2002) (upholding the AJ's issuance of a decision in complainant's favor as a sanction for the agency's failure to respond to complainant's discovery requests in accordance with the AJ's order compelling responses and failure to respond to the AJ's order to show cause). Here, we find that the AJ did not abuse his discretion when he issued default judgment in favor of Complainant. See Bente v. U.S. Postal Serv., EEOC Appeal No. 07A40023 (Apr. 28, 2006) (upholding sanctions against agency that asserted attorney-client privilege and attorney work product as reasons for failing to comply with AJ's discovery order). Remedy Following Default Judgment Now, the Commission must determine whether the AJ abused his discretion regarding remedies associated with the default judgment. When default judgment has been issued in favor of a complainant, the Commission must determine if there is evidence that establishes the complainant's right to personal relief. See Jeremy S. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120142917 (Feb. 9, 2017). One way to show a right to relief is to establish the elements of a prima facie case. See Royal, EEOC Request No. 0520080052; Matheny v. Dep't of Justice, EEOC Request No. 05A30373 (Apr. 21, 2005). In this case, Complainant alleges, in part, that she was subjected to reprisal because of her EEO activity. Proof of a prima facie case will vary depending on the facts of the case. McDonnell Douglas Corp. v. Green, 411 U.S. at 802 n. 13 (1973). Generally, to establish a prima facie case of reprisal, Complainant must show that (1) she engaged in protected EEO 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 her protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). Complainant contends that she was subjected to reprisal after her supervisor learned of her EEO activity during counseling. Obviously, Complainant's initial April 25, 2012 EEO Counselor contact constitutes previous EEO activity for adverse actions that occurred thereafter. The record reveals that the EEO Counselor contacted the supervisor about Complainant's claims during an interview on May 18, 2012, and the supervisor acknowledges that he first learned of Complainant's EEO activity through the EEO Counselor. Moreover, some of the claims raised by Complainant with the EEO Counselor named the group supervisor as the responsible management official. Further, we find that issuing a proposed suspension7 is the type of adverse treatment that is reasonably likely to deter employees from engaging in EEO activity. Complainant was issued the notice of proposed suspension on October 15, 2012 by the group supervisor. We find that the temporal proximity between the supervisor's awareness of Complainant's EEO activity and the issuance of the notice of proposed suspension, coupled with the fact that the supervisor was named as a responsible management official in Complainant's previous EEO claims, creates a nexus between Complainant's previous EEO activity and the proposed suspension. As such, we find that Complainant established a prima facie case of retaliation and therefore established her entitlement to relief. Further, because Complainant's suspension claim is part of Complainant's overall claim of ongoing harassment, we find it appropriate for the AJ to award damages that address the entirety of her harassment claim. The AJ ordered the Agency to rescind the reprimand, suspension, and leave restrictions of April, May, and October 2012. The AJ also found that the Agency must pay Complainant back pay and interest for any pay Complainant lost, plus interest, because of her suspension in November 2012, from the date she suffered the loss of pay until she returned to work. Regarding compensatory damages, the AJ ordered the Agency to pay Complainant $6,000 in non-pecuniary compensatory damages. Additionally, the AJ ordered the Agency to post a notice of discrimination at its Seattle offices; to review and revise its EEO policies and practices to comply with Commission regulations that provide that complainants are entitled to a fair and impartial investigation of their complaints; and to ensure Agency counsel take steps to refrain from intruding into the investigative phase of the EEO process, and/or do not give the impression of intruding into the investigative phase of the process prior to the submission of the request for a hearing. Finally, with respect to the AJ's award of non-pecuniary compensatory damages, we note that Complainant testified that she suffered stress, headaches, sleeplessness because of the Agency's discriminatory actions. The Agency notes that the AJ discredited portions of Complainant's testimony as unworthy of belief and unable to link her conditions to the alleged discriminatory actions. However, we are persuaded that the AJ's compensatory damages award properly reflects the discounting of portions of Complainant's testimony as unworthy of belief and deficient in establishing causation. Nevertheless, we are mindful that the AJ issued default judgment in favor of Complainant regarding several harassing Agency actions, including suspension, reprimand, and leave restriction. Moreover, although Complainant may have embellished portions of her testimony about the impact of the discrimination, we find it reasonable that someone subjected to the type of actions alleged in this complaint would suffer some distress. The AJ's default judgment, coupled with Complainant's overall testimony that she was distressed because of the harassment/discrimination, persuades us that the AJ's award of $6,000 is supported by substantial evidence and takes into account the nature of the discriminatory action and the severity of the harm suffered by Complainant. This award is also consistent with our prior decisions. See Smith v. Dep't of Defense, EEOC Appeal No. 01984888 (Dec. 22, 2000) (granting $6,000 in non-pecuniary damages for retaliatory low performance appraisal where limited testimony established emotional pain and suffering which caused complainant to seek counseling); Hairston v. Dep't of Education, EEOC Appeal No. 0120103308 (Jan. 4, 2013), req. for recon. den., EEOC Request No. 0520130245 (Oct. 25, 2013) (awarding $5,000 in non-pecuniary damages for retaliatory low performance appraisal where complainant provided limited testimony that he experienced stress and anxiety that caused disruptive sleep patterns, headaches, and other physical problems). Additionally, with respect to the AJ's remaining ordered elements of relief, we find that they are likewise supported by the evidence, and not an abuse of discretion.8 CONCLUSION Accordingly, based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final order for the reasons set forth in this decision. We REMAND this matter to the Agency to undertake remedial action consistent with this decision and the ORDERS set forth below. ORDER To the extent that it has not already done so, the Agency shall undertake the following actions: 1. Within thirty (60) calendar days from the date this decision is issued, the Agency will pay Complainant $6,000 in non-pecuniary compensatory damages. 2. Within sixty (60) calendar days after the date this decision is issued, the Agency shall pay back pay and interest for any pay Complainant lost, plus interest, because of her suspension in November 2012. Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address reference in the statement entitled "Implementation of the Commission's Decision." 3. Within sixty (60) calendar days after the date this decision is issued, the Agency shall rescind Complainant's relevant reprimand, suspension, and leave restrictions of April, May, and October 2012. 4. Within sixty (60) calendar days after the date this decision is issued, the Agency shall review EEO policies and practices to ensure compliance with Commission regulations and MD-110 that provide that complainants are entitled to a fair and impartial investigation of their complaints; and to ensure Agency counsel take steps to refrain from intruding into the investigative phase of the EEO process, and/or do not give the impression of intruding into the investigative phase of the process prior to the submission of the request for a hearing. 5. Within thirty (30) calendar days after the date this decision is issued, the Agency shall post a notice of discrimination in accordance with the Order below entitled "Posting Order." The Agency is further directed to submit a report of compliance, as provided in the statement "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented. POSTING ORDER (G1016) The Agency is ordered to post at its Seattle facility copies of the enclosed 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 was issued, 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. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 1. 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (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 Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations 03/14/18 __________________ 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 in camera proceeding is one held in a judge's chambers or other private place. Black's Law Dictionary at 1221 (7th ed. 1999). 3 We note that although the June 3, 2014 Amended Prehearing Report and Order was issued after the deadline for submitting the privilege log, the AJ nevertheless reported that there was a May 28, 2014, deadline for submitting the log in the Amended Prehearing Report and Order. 4 The record indicates that Complainant's representative actually requested a hearing via email on August 24, 2013. 5 The copy of the log in the record consists of only 92 pages. 6 When a party fails to produce relevant evidence within its control, the failure to produce such evidence raises an inference that the evidence, if produced, would prove unfavorable to that party. International Union (UAW) v. NLRB, 459 F.2d 1329, 1335 (D.C. Cir. 1972). 7 We note the proposed suspension was later effectuated. 8 Given our disposition of this case, we decline to address Complainant's Motion to Show Cause regarding the Agency's untimely production of the hearing record on appeal. Complainant is not entitled to any further relief or action beyond that already ordered by the AJ, and affirmed by us on appeal. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0720150035 14 0720150035