U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dionne W.,1 Complainant, v. Dr. Heather A. Wilson, Secretary, Department of the Air Force, Agency. Appeal No. 0720150040 Hearing No. 530-2014-00020X Agency No. 9L2W12007 DECISION Following its August 27, 2015 final order (FAD), the Agency filed a timely appeal which the Commission accepts. On appeal, the Agency requests that the Commission affirm its rejection of an Equal Employment Opportunity Commission Administrative Judge's (AJ) finding of discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. The Agency also requests that the Commission affirm its rejection of the relief ordered by the AJ.2 For the following reasons, the Commission REVERSES in part, and AFFIRMS in part, the Agency's FAD. ISSUES PRESENTED 1. Did the AJ err in entering a default judgment in favor of Complainant based on her finding that the Agency had repeatedly breached its discovery obligations and had failed, without good cause, to comply with her Order to attend a scheduled status conference? 2. Did the AJ err in awarding Complainant $185,000.00 in non-pecuniary compensatory damages? 3. Did the AJ err in ordering as relief non-discriminatory placement into a Senior Executive Service (SES) position? 4. Did the AJ err in awarding Complainant $155,050.00 in attorney's fees and $4,735.68 in costs? BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Information Technology Specialist, GS-14, at the United States Cyber Command (USCYBERCOM) at Fort George E. Meade, Maryland. AJ Decision, p. 1. On April 2, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of sex (female) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when from December 2010: 1. Complainant was denied training on January 7, 2011, February 2011 and March 2011; she was denied several opportunities to compete for promotion and upward mobility positions; and she was denied the results of a Command Directed Investigation (CDI) based on her harassment charges against leadership; 2. False information was reported on the internet by Public Affairs which negatively impacted her professional reputation; 3. Deputy Director, J58, (S1), who was Complainant's former supervisor, publicly expressed frustrations about Complainant's work ethic and loudly threatened her in the office by saying "fall in line with the group or else"; 4. Complainant was referred to as "Blonde Bimbo" by a Lieutenant Colonel (Lt. Col.) (former J3 staff member) (E1), and when the comment was reported to Management/Human Resources, it was never addressed; 5. Co-workers continuously made derogatory comments about Complainant in the office environment and confronted her about work related activities in a threatening manner; bullied and intimidated her by calling her personal telephone after duty hours; shouted obscenities at her and boxed up personal belongings on her desk and moved them without her knowledge; 6. Complainant's scope of responsibilities was negatively impacted by intentional barriers put in place with regards to her assignments of duties and terms/conditions of employment which resulted in her not meeting assigned deadlines to include denied funding for projects; denied attendance to meetings; continuously switching her supervisors; changing her job location; not addressing senior leaders bullying; intimidating behavior towards her and moving her to a remote work location without her consent; 7. Complainant was non-selected for promotion to a position as the J84 Division Chief, on October 23, 2012; Complainant also alleged that she was subjected to discrimination and a hostile work environment in reprisal for her prior EEO activity when: 8. On or about March 2012, prior to being reassigned to J8, Complainant was not included in the J9 staffing by the former J5 technical director, current J9 director, (E2) while others of lesser background and experience were named as senior personnel in the J9 and reported directly to him; 9. On or about March through May 2012, Complainant's career was negatively impacted when the Major General, former J5 Director, (S2) neglected to follow required personnel policies and procedures with regard to his direction that Complainant report to E2 and by not directing S1 to rate Complainant within an appropriate timeframe; 10. On or about April 2012, the Brigadier General (S3) denied Complainant's request to serve as the interim J84 Division Director (S1's previous position) and instead selected E3, a male employee who has J7 exercise background and was a frequent meeting/travel companion of E1; 11. On or about April 2012, Complainant's performance rating was four months late, which negatively impacted her opportunity to fairly compete for jobs within CYBERCOM. This appraisal covered the period of the J9 announcement and clearly demonstrated her capabilities and experience as the most qualified person to assume the J9 Director position; 12. On April 27, 2012, after an unresolved mediation, Complainant was reassigned from J5 to work in a "bogus" position within the J8 "Engine Room." This position holds no position description, statement of duties or similar documentation which would outline Complainant's responsibilities. This move was done without a personnel action (SF-50) and prior consultation or coordination with Complainant; 13. On August 10, 2012, Complainant was notified by Chief, Civilian Personnel Division, USCYBERCOM (E4) of her non-selection for the J9 Director position, USCYBECOM announcement GS-2210, Supervisory Information Technology Specialist, J9 Director; 14. In May 2011, the Navy Captain, J58 Director (S4) informed Complainant that certain J58 personnel raised concerns about an investigation that took place at Complainant's previous employment and felt that punitive actions should be taken against her based on an unofficial blog and Wiki page entries. At the conclusion of the investigation into the allegations, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an AJ. Complainant timely requested a hearing. Over the Agency's objections, the AJ assigned to the case granted the Complainant's September 8, 2014, request for issuance of default judgment against the Agency on February 25, 2015. A hearing on relief was held on April 8, 2015. On July 2, 2015, the AJ issued a decision on relief, including attorney's fees and costs. On August 27, 2015, the Agency issued a FAD rejecting the AJ's finding that Complainant was entitled to default judgment on her claims that she was subjected to sex and reprisal discrimination and a hostile work environment. The FAD also rejected the relief awarded to Complainant. The Agency appealed the AJ's decision, and Complainant also filed an appeal of the Agency's FAD contending that the AJ's decision on liability and relief were correct. CONTENTIONS ON APPEAL I. Agency's Contentions on Appeal First, the Agency contends that Complainant and the AJ engaged in improper ex parte communication regarding the case; therefore, the AJ's decision should be reversed. Second, the Agency contends that Complainant was deceptive in communicating to the AJ that she did not know who the new Agency representative was, which resulted in the Agency not receiving correspondence about a status conference that led to issuance of default judgment against it. Third, the Agency contends that the AJ erred in issuing a sanction of default judgment for alleged discovery failures and for its failure to attend a status conference scheduled by the AJ. Agency Brief in Support of Appeal (Agency Brief), p. 5-7. Finally, the Agency challenges the AJ's award of attorneys' fees and costs, and non-pecuniary compensatory damages. The Agency argues that attorney billing entries are inconsistent with other statements in the record, that the attorney's fees and costs are unsupported by the record,3 and that the AJ did not impartially access Complainant's creditability in support of her award to Complainant of non-pecuniary compensatory damages. Agency Brief, p. 15-25, 29-34. The Agency also contends that the AJ erred in ordering for the Agency to place Complainant into an SES position. Agency Brief, p. 25-27. II. Complainant's Contentions on Appeal Complainant contends that the AJ was correct to issue default judgment in her favor and that the AJ's order of relief is also correct. See generally, Complainant's August 21, 2015 Brief in Support of Appeal (Complainant's Brief). Complainant also submitted a reply to the Agency's appeal rebutting all aspects of the Agency's appeal. See Complainant's Reply to Agency's Brief. ANALYSIS AND FINDINGS I. THE AJ DID NOT ABUSE HER DISCRETION IN ISSUING DEFAULT JUDGMENT AGAINST THE AGENCY BECAUSE THE AGENCY DID NOT SHOW GOOD CAUSE FOR NOT ATTENDING A STATUS CONFERENCE The AJ issued default judgment in favor of Complainant on her claims of discrimination and a hostile work environment based on sex and EEO activity.4 The Agency argues that the AJ abused her discretion in issuing a sanction of default judgment for its failure to show good cause for why it did not attend a status conference scheduled by the AJ. When a complainant or agency fails to comply with an AJ's order, an AJ may take action against the non-complying party pursuant to 29 C.F.R. § 1614.109(f)(3), up to and including issuing a decision in favor of the opposing party. See 29 C.F.R. § 1614.109(f)(3)(iv). Before sanctions are imposed, the Commission requires the AJ to issue an order to the offending party that makes clear that sanctions may be imposed and the type of sanction that could be imposed for failure to comply with an order unless the party can show good cause for that failure. See Rountree v. Department of Treasury, EEOC Appeal No. 07A00015 (July 13, 2001). A showing that the non-complying party acted in bad faith is not required. See Cornell v. Department of Veterans Affairs, EEOC Appeal No. 01974476 (November 24, 1998). Furthermore, sanctions must be tailored in each case to appropriately address the underlying conduct of the party being sanctioned. See Hale v. Department of Justice, EEOC Appeal No. 01A03341 (December 8, 2000). A sanction may be used to deter the non-complying party from similar conduct in the future, as well as to equitably remedy the opposing party. Id. If a lesser sanction would suffice to deter the conduct and to equitably remedy the opposing party, an AJ may be abusing her discretion in imposing a harsher sanction. See Pacheco v. United States Postal Service, EEOC Appeal No. 01970691 (November 25, 1998). The AJ explained that the Agency did not attend an August 26, 2014 status/settlement conference, and that she issued an Order to Show Cause for why default judgment should not be granted in favor of Complainant on August 28, 2014. AJ Decision, p. 2. The show-cause order specified that the Agency should indicate why the case should not be decided in favor of Complainant, given her summary judgment motion. See August 28, 2014 Order to Show Cause. Complainant's summary judgment motion included arguments regarding the Agency's discovery failures. Complainant's Response, p. 23. The AJ also explained that the Agency did not respond to Complainant's discovery requests in accordance with a November 13, 2013 acknowledgement and order. AJ Decision, p. 2. Rather, the Agency argued for a completely new investigation, but the AJ disagreed that discovery would not serve to address inadequacies in the record. Id. The Agency attempted to explain what it characterized as a "series of unfortunate events" involving its designated representative leaving the Agency, and the failure of its new representative to receive correspondence from the AJ. Id. The AJ pointed out that correspondence regarding the status conference was not returned as "undeliverable," the Agency did not enter an appearance for a new Agency representative, the Agency did not inform the AJ of an addressee to whom orders should more appropriately be sent, and that the Agency's EEO office received the correspondence. AJ Decision, p. 2. The AJ concluded that the Agency's reply to the order to show cause confirming these facts did not constitute a good cause showing of why a sanction of default judgment should not be imposed. AJ Decision, p. 21. The Agency argues that the AJ did not serve the scheduling order to its "designated HECAPS representative," but this would have been the former Agency representative who had already withdrawn from the case due to leaving the Agency, and the new Agency representative did not enter an appearance in the case until months later on September 3, 2014. See, e.g., Agency Brief, p. 3-4; Complainant's Response, p. 18; see also, Sept. 3, 2014 Designation of Agency Representative. The AJ did not abuse her discretion in issuing the sanction, as it serves to remedy Complainant for the Agency's failure to comply with orders, and to deter the Agency from engaging in similar conduct in the future. See, e.g., Germain v. Environmental Protection Agency, EEOC Appeal No. 07A10048 (December 23, 2002) (upholding AJ's issuance of decision in complainant's favor as a sanction for the agency's failure to show good cause for its failure to comply with AJ's orders); Janda v. United States Postal Service, EEOC Appeal No. 07A10018 (March 4, 2002) (upholding AJ's issuance of decision in complainant's favor as a sanction for agency's failure to respond to complainant's discovery requests and failure to respond to AJ's order to show cause). Therefore, the AJ's decision to issue a sanction of default judgment in favor of Complainant was not an abuse of discretion.5 II. AJ'S AWARD OF NON-PECUNIARY COMPENSATORY DAMAGES, ATTORNEYS' FEES & OTHER RELIEF Post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. 29 C.F.R. § 1614.405(a). Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. EEOC Management Directive 110, Chapter 9, at § VI.B. (November 9, 1999). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. EEOC Management Directive 110, Chapter 9, at § VI.B. A. Non-pecuniary Compensatory Damages The AJ awarded Complainant $185,000.00 in non-pecuniary damages, and the Agency argues that the award is unsupported by the record in large part due to Complainant's credibility. A Complainant who establishes her claim of unlawful discrimination may receive compensatory damages for non-pecuniary losses (e.g. pain and suffering, mental anguish). 42 U.S.C. § 1981a (b)(3). For an employer with more than 500 employees, such as the Agency, the limit of liability for non-pecuniary damages is $300,000. Id. While there are no definitive rules governing the amount of non-pecuniary damages to be awarded, non-pecuniary damages must be limited to the sums necessary to compensate the injured party for actual harm, even where the harm is intangible, and should take into account the severity of the harm and the length of time that the injured party has suffered the harm. Carter v. Duncan-Higgins, Ltd., 727 F.2d 1225 (D.C. Cir. 1984); Carpenter v. Dep't of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995). The amount of the award of non-pecuniary compensatory damages should not be "monstrously excessive" standing alone, should not be the product of passion or prejudice, and should be consistent with the amount awarded in similar cases. See Cygnar v. City of Chicago, 865 F. 2d 827, 848 (7th Cir. 1989); EEOC v. AIC Security Investigations, Ltd., 823 F. Supp. 571, 574 (N.D. Ill. 1993). Evidence from a health care provider or other expert is not a prerequisite for recovery of compensatory damages for emotional harm. Lawrence v. U.S. Postal Service, EEOC Appeal No. 01952288 (Apr. 18, 1996) (citing Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993)). Complainant's own testimony, along with the circumstances of a particular case, can suffice to sustain her burden in this regard. The more inherently degrading or humiliating the agency's action is, the more reasonable it is to infer that a person would suffer humiliation or distress from that action. Id. The absence of supporting evidence, however, may affect the amount of damages appropriate in specific cases. See Banks v. U.S. Postal Service, EEOC Appeal No. 07A20037 (September 29, 2003) (citing, Lawrence, EEOC Appeal No. 01952288). The AJ extensively justified her award of $185,000.00 in non-pecuniary compensatory damages to Complainant, which included references to specific events comprising the hostile work environment Complainant was subjected to for years, including the Agency's continuing negative treatment of Complainant. See, e.g., AJ Decision on Corrective Action and Attorneys' Fees, p. 11-12. In summary, Complainant testified to experiencing humiliation, embarrassment, uncontrollable crying, emotional distress, stress, anguish, sadness, anger, loss of interest in activities which previously gave her joy, loss of laughter, and suffering damage to her career, reputation, professionalism and integrity. See generally, AJ Decision on Corrective Action and Attorneys' Fees, p. 11-17. Complainant's testimony was corroborated with testimony from her spouse. AJ Decision on Corrective Action and Attorney's Fees, p. 16. The Agency challenges Complainant's credibility regarding the events that allegedly comprised the hostile work environment, and argues that the AJ's credibility determinations are not supported by substantial evidence in the record. Agency Brief, p. 15-25. However, the question of whether or not Complainant suffered discrimination and a hostile work environment based on sex and reprisal was decided by default judgment in favor of Complainant. Therefore, the Agency's challenge to Complainant's credibility regarding harassing telephone calls and testimony that certain officials were abusive are irrelevant to the issue of Complainant's entitlement to non-pecuniary compensatory damages for harm Complainant suffered as a result of the events comprising her discrimination complaint she prevailed on. See e.g., Agency Brief, p. 19-21. To the extent they are relevant, the AJ is entitled to make credibility determinations and, in this case, the AJ found Complainant to be highly credible on these matters. The AJ's award of non-pecuniary compensatory damages is supported by substantial evidence, and is consistent with other cases of a similar nature, and is not excessive. See, e.g., Janda v. U.S. Postal Service, EEOC Appeal No. 07A10018 (March 4, 2002) (awarding $100,000 in non-pecuniary compensatory damages after default judgment finding of hostile work environment and constructive discharge against the agency); Vandesand v. U.S. Postal Service, EEOC Appeal No. 07A40037 (September 28, 2004)(awarding $150,000.00 in non-pecuniary compensatory damages in default judgment against the agency for subjecting complainant to a hostile work environment during an 11-month time frame); McCormick v. Dep't of Justice, EEOC Appeal No. 0720100040 (Nov. 23, 2011) (awarding 200,000 in non-pecuniary damages for a complainant who suffered damage to her professional reputation, severe migraines, lack of sleep, and strains on her relationships). Therefore, the AJ's award of $185,000.00 in non-pecuniary compensatory damages will not be disturbed. B. Placement into A Senior Executive Service (SES) Position The AJ ordered that Complainant to be placed into an SES position due to her non-selection for a Director position. The Agency argues that the position to which Complainant applied and was not selected was a GS-15 position. Agency Brief, p. 25-26. A complainant who prevails in whole or in part on a claim of discrimination is entitled to full relief which places him/her in the position s/he would have been in absent the agency's discriminatory conduct. See Albermarle Paper Co. v. Moody, 422 U.S. 405, 418-419 (1975). For cases in which the employee is not selected for a position or promotion due to discrimination, this would include an offer of placement into the position sought, or a substantially equivalent position. See Carson v. Dep't. of Justice, EEOC Appeal No. 0120100078 (Feb. 16, 2012). Complainant applied for a Supervisory Information Technology Specialist, J9 Director (GS-15) position and was not selected in August 2012. Agency Brief, p. 26; June 26, 2012 Air Force Core Personnel Document. The individual who was selected occupied the position at the GS-15 level from August 10, 2012 until he left in 2013.6 AJ Decision on Corrective Action and Attorneys' Fees, p. 5. In 2013, another individual was placed into the position, and served in at the SES level. Id. at p. 5; see also, Hearing Transcript (Hr'g Tr), p. 78. The AJ reasoned that Complainant would have been eligible for placement into an SES position at that time given that she is eligible for hire as an SES. AJ Decision on Corrective Action and Attorneys' Fees, p. 4-5. However, the Agency explained that the SES position in question which was created in 2013 was a National Security Agency (NSA) position, and not a position with the Agency. Agency Brief, p. 26. The individual selected to fill the position was an NSA employee, serving as either a "detailee" or "integree" with the Agency. Agency Brief, p. 26. We find that the position to which Complainant applied and was not selected was a GS-15 position, and a promotion to SES was not guaranteed. See, e.g., Millenson v. Dep't of Labor, EEOC Appeal No. 01964298 (Oct. 23, 1997) (finding that promotion to an SES position was too speculative to order as relief). Therefore, the AJ's conclusion that Complainant was entitled to placement in an SES position is not supported by substantial evidence. C. Attorney's Fees and Costs The AJ awarded Complainant $155,050.00 in attorneys' fees, and $4,735.68 in costs because she prevailed on her sex and reprisal discrimination claims. The Agency argues that fees and costs were excessive. 1. Award of Attorney's Fees Attorneys' fees will be computed by determining the "lodestar": the number of hours reasonably expended multiplied by a reasonable hourly rate. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 11, § VI.F.1 (Aug. 5, 2015). The number of hours should not include excessive, redundant, or otherwise unnecessary hours. Id. A reasonable hourly rate is based on "prevailing market rates in the relevant community" for attorneys of similar experience in similar cases. Id. The hours spent on unsuccessful claims should be excluded in considering the amount of a reasonable fee only where the unsuccessful claims are distinct in all respects from the successful claims. EEO MD-110, Ch. 11, § VI.F.1. Successful and unsuccessful claims are not fractionable when they are closely intertwined and involve the same common core of facts. See Mannon v. U.S. Postal Service, EEOC Appeal No. 0720070074 (Apr. 4, 2012). The Commission and courts generally use the Laffey Matrix to determine the hourly rate for Washington, D.C. area attorneys. Laffey v. Northwest Airlines Inc., 572 F. Supp. 354 (D.D.C. 1983), rev'd in part, 746 F.2d 4 (D.C. Cir. 1984). The Laffey matrix is a chart compiled yearly by the United States Attorney's Office in the District of Columbia. It provides a schedule of hourly rates prevailing in the Washington, D.C. area in each year, going back to 1981, for attorneys at various levels of experience. Piper v. U.S. Dep't of Justice, 339 F. Supp. 2d 13, 24 n. 8 (D.D.C. 2004). A reasonable fee award may be assessed in light of factors such as: (1) the time required (versus time expended) to complete the legal work: (2) novelty or difficulty of the issues: (3) the requisite skill to properly handle the case; (4) the relief sought and results obtained: and (5) the nature and length of the attorney-client relationship. See Cerny v. Dep't of the Army, EEOC Request No. 05930899 (Oct.19, 1994). "Agencies are not required to pay attorney's fees for services performed during the pre-complaint process, except that fees are allowable when the Commission affirms on appeal an administrative judge's decision finding discrimination after an agency takes final action by not implementing an administrative judge's decision." 29 C.F.R. § 1614.501(e)(iv). Complainant requested $157,100.00 for 314.2 hours of work, with an hourly rate of $500 per hour pursuant to the Laffey Matrix, as well as $4,735.68 in costs. AJ Decision on Corrective Action and Attorneys' Fees, p. 19. The Agency urged the AJ to reduce the amount requested for attorney's fees and costs by $12,800.00 and $492.92, respectively. The Agency also urged the AJ not to enhance the fees based on the degree of success obtained by Complainant's counsel. Id. at p. 19. The AJ's award is supported by evidence in the record which included an affidavit from Complainant's attorney attesting to his years of experience and hourly rate, and an itemization of work performed for Complainant's case. See April 20, 2015 Affidavit in Support of Request for Approval of Attorney Fees and Costs. First, the AJ found that Complainant was entitled to attorney's fees for pre-complaint processing because her attorney assisted Complainant in framing her claims which were later utilized for the formal complaint. AJ Decision on Corrective Action and Attorneys' Fees, p. 20. While attorney's fees are not allowable for services performed for pre-complaint processing, in the present case, they are allowable since the Commission is affirming on appeal an AJ's finding of discrimination after the Agency's final action did not implement the AJ's decision. 29 C.F.R. § 1614.501(e)(iv); see also, Maryanne S. v. Dep't of Justice (Fed. Bureau of Prisons), EEOC Appeal No. 0720140028 (Dec. 30, 2015) (awarding attorney's fees for pre-complaint process because decision affirmed AJ finding of discrimination after agency did not implement). Therefore, Complainant is entitled to the fees the AJ awarded for services rendered during pre-complaint processing. Second, the AJ did not reduce Complainant's attorney's fees based on the Agency's argument that Complainant sought excessive fees for ex parte communications with the AJ,7 that she sought fees for work not performed and for excessive expenses. Complainant's e-mails and itemized list of work performed demonstrates that communications with the AJ were for procedural concerns, and not the merits of the case. See Complainant's Reply to Agency Brief, p. 30-34. Further, there is no indication that Complainant sought fees for legal work not performed. The Agency advances the argument that Complainant stated she did not receive the affidavit of an Agency official, but that the itemization of legal work performed bills for reviewing such affidavit. Agency Brief, p. 12-13. Complainant explained that such work was performed seeking out the affidavit, and provided e-mails to this effect. See Complainant's Reply to Agency's Response to Complainant's Fees and Costs Request, p. 5-6. There is no evidence to the contrary on the issue of billing for work not performed. Therefore, the AJ's award of $155,050.00 in attorney's fees is correct. 2. Award of Costs A verified statement of fees and costs should include documentation of costs. EEO MD-110, at Ch. 11, § VI.G. An award may be reduced for failure to provide adequate documentation. Id. Regarding excessive expenses, the Agency's argument that air fare and other expenses for Complainant's attorney traveling between Florida and Maryland was excessive in that the attorney resided in Maryland is not supported because the attorney explained that his second residence was in Florida. Complainant's Reply to Agency Brief, p. 89-90. There is insufficient evidence to support the Agency's argument that this expense was not legitimate. The Agency also argues that an expense of $41.12 for a February 16, 2015 shuttle ride from Complainant's home to the airport was not justified. Agency Brief, p. 13. It is not altogether clear from Complainant's statement of costs what the $41.12 shuttle ride was for because no February 16, 2015 date is reflected. See Affidavit in Support of Request for Approval of Attorney Fees and Costs, p. 16. Therefore, given that this expense was not itemized, Complainant's award of costs will be reduced by $41.12. The AJ's award of $4,735.68 in costs to Complainant will be reduced to $4,694.46. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed, the Agency's FAD, which declined to adopt an AJ's finding that Complainant was subjected to discrimination and a hostile work environment based on sex and reprisal, along with remedies is REVERSED in part. The AJ's decision awarding costs and non-discriminatory placement is MODIFIED. The complaint is REMANDED for compliance with this decision and the Order below. ORDER Within one hundred and twenty (120) calendar days from the date this decision is issued the Agency is ORDERED to take the following actions, to the extent it has not already done so: 1. Retroactively place Complainant into a GS-15 position substantially equivalent to the one she was denied, with, all seniority and other rights and benefits she would have received if placement had occurred in January 2012.8 Complainant shall have fifteen (15) calendar days from receipt of the offer to accept. If Complainant does not accept the offer within 15 calendar days, Complainant will be considered to have declined the offer, unless she can show that circumstances beyond her control prevented a response within the time limit. 2. Determine the appropriate back-pay, interest, and other benefits due to Complainant. The calculation shall include appropriate offsets to account for any interim earnings. Complainant shall cooperate in the Agency's efforts to compute the amount of back-pay and benefits due, and shall provide all relevant information the Agency requests. If there is a dispute regarding the exact amount of back-pay and/or benefits, the Agency shall issue a check to the Complainant for the undisputed amount within one hundred and twenty (120) calendar days of the date the Agency determines the amount it believes to be due. 3. Pay Complainant $185,000.00 in non-pecuniary compensatory damages. 4. Pay Complainant $155,050.00 in attorneys' fees, and $4,694.46 in costs. 5. Provide training to all United States Cyber Command (USCYBERCOM) Plans and Policy Directorate managers and supervisors at the GS-14 level and above, addressing their responsibilities under Title Vll, and specifically with regard to employees' protections against retaliatory and sex-based harassment. 6. Post copies of the notice discussed below for 60 consecutive days in conspicuous places at the US Department of the Air Force, United States Cyber Command (USCYBERCOM) in Fort Meade, Maryland, including all places where notices to employees and applicants for employment are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other materials. 7. The Agency shall strongly consider taking appropriate disciplinary action against Agency supervisors involved in the discrimination. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the compliance officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure date(s). The Agency shall provide a report of its compliance with this Order to the Compliance Officer referenced below. POSTING ORDER (G0617) The Agency is ordered to post at its United States Cyber Command (USCYBERCOM) at Fort George E. Meade, Maryland 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 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 as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). ATTORNEY'S FEES (H1016) 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 the date this decision was issued. 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 (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 03/27/18 __________________ 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 Complainant originally filed an appeal directly from the AJ's decision arguing that it should be affirmed, but the appeal was administratively closed and combined with the present appeal. Complainant's arguments were considered in the present case. 3 The Agency contends that the AJ was incorrect to allow an enhancement of attorney's fees for exceptional results in the case. Agency Brief, p. 33-34. Contrary to the Agency's vociferous arguments on this issue, there was no percentage increase to Complainant's attorney's fees, and the Agency does not point out what portion of the fees constituted such an increase. Id. Fees were awarded based on a lodestar calculation of $500/per hour for 310.1 hours of legal work, totaling $155,050.00. AJ Decision on Corrective Action and Attorneys' Fees, p. 21; see also, Attorney's Fees Affidavit. There does not appear to be an additional percentage increase for the exceptional work and results obtained in the case, even though the AJ indicated that such an enhancement would be appropriate. 4 The AJ determined that, given the extent of the alleged Agency actions, Complainant stated a prima facie case of sex and reprisal discrimination, and a hostile work environment. AJ Decision, p. 16-19. 5 To the extent that the Agency argues that Complainant and the AJ engaged in improper ex parte communication, there is no evidence that the AJ and Complainant discussed the merits of the case apart from the Agency. The communication between the AJ and Complainant consisted of procedural concerns as evidenced by e-mails Complainant produced on appeal. See Complainant's Reply to Agency Brief, p. 30-34. 6 The individual held the position in an acting capacity from January 2012 to the time of his selection to the vacancy. AJ Decision on Corrective Action and Attorney's Fees, p. 5. 7 The Agency's argument that the AJ did not properly consider its motion for her recusal for ex parte communication is rejected. See e.g., Agency Brief, p. 14. There is no evidence of improper ex parte communication. 8 Retroactive promotion is being ordered from January 2012 instead of the date of Complainant's actual non-selection to the position because of the AJ's finding that Complainant was subjected to an ongoing hostile work environment. The hostile work environment included the selectee being temporarily promoted into the J9 director position prior to his official selection to the position. The exact date that the J9 director was temporarily promoted into the position in January 2012 cannot be ascertained from the record with certainty. The Agency is directed to ascertain the date of the temporary promotion. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0720150040 16 0720150040