U.S. Equal Employment Opportunity Commission (E.E.O.C.) Office of Federal Operations * * * TYRONE D., COMPLAINANT, v. ASHTON B. CARTER, SECRETARY, DEPARTMENT OF DEFENSE (DEFENSE THREAT REDUCTION AGENCY), AGENCY. Appeal No. 0720160005 Hearing No. 570-2012-00340X Agency No. DTRA-11-CX-007 June 16, 2016 DECISION Following its June 25, 2015 final order, the Agency filed a timely appeal. On appeal, the Agency requests that the Commission affirm its rejection of an Equal Employment Opportunity Commission Administrative Judge's (AJ) finding of discrimination and separate determination of relief for a violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a GS-13 Mechanical Engineer in the Agency's Research and Development Enterprise at Kirtland Air Force Base in Albuquerque, New Mexico. In 2007, the Agency converted from the General Schedule (GS) pay system to the National Security Performance System. As a result, Complainant was converted to a YD-02, the equivalent of a GS-13. In December 2009, Complainant requested a promotion to reflect his higher-level duties related to the Massive Ordinance Program. Instead, the Division Chief removed Complainant from the program, and his duties were given to Complainant's second-level supervisor (S2). Complainant subsequently sought EEO counseling, but he did not file a formal EEO complaint regarding the matter. Sometime in 2009, Congress required the Agency to convert back to the GS pay scale by Fall 2010. As part of the conversion process, the Agency required supervisors to review each employee's position description and submit them to the Eluman Resources Office for proper classification. Management was instructed to submit a position description that accurately described the nature of the work of the employee currently being performed by the employee. S1 ultimately developed a GS position description for Complainant based on what he believed the Agency required for the position. Based on S1's submission, Human Resources graded Complainant's position at the GS-13 level. On July 14, 2010, Complainant appealed his grade determination to the Human Resources Program Board. Complainant is a technical and subject matter expert with highly specialized knowledge of engineering mechanics, material science, weapons, and weapons effects. In addition, Complainant performed the duties of program manager. In his appeal, Complainant submitted a position description for a GS-14 General Engineer, which described his actual duties and responsibilities. The position description specifically referenced the Hard Target Defeat Program for which he was responsible. Further, Complainant performed scientific analysis with minimal supervisory controls and provided independent advice to the Agency's Senior Review Panel on the Hard Target Defeat Program and other weapons programs. Thus, Complainant met all of the requirements and elements set out in the GS-14 position description. Nonetheless, when asked by the Human Resources Program Board, S1 and S2 opposed the position description submitted by Complainant. In opposition, S1 and S2 submitted a GS-13 position description describing the duties of a Test Scientist, which did not reflect Complainant's actual duties and responsibilities. Complainant's appeal was subsequently denied by the Human Resources Program Board based on his supervisors' assessment, and he was graded at the GS-13 level. On August 23, 2010, Complainant had a discussion with a co-worker (CW1) about a joke S1 sent to CW1. S1 had sent a political cartoon to CW1 from his personal email account. The cartoon suggested, as a solution to stopping illegal immigration, that the U.S. build a moat along the border, filled it with flood waters from Hurricane Katrina, and transport alligators from Florida to attack and kill illegal immigrants. In addition, the email stated "Thought for the day calling an illegal alien an 'undocumented immigrant' is like calling a drug dealer an 'unlicensed pharmacist."' Complainant reported the email exchange to the Agency's EEO Office and complained of a hostile work environment. The EEO Counselor discussed the matter with S1, and S1 reported the meeting with the EEO Counselor to S2. S2 did not discipline or counsel S1 about the email. Instead, S2 told S1 to be careful about how he used email. In January 2011, Agency management administratively promoted a General Engineer (CW2) from the GS-13 grade level to a GS-14 Program Manager for the Massive Ordinance Penetrator Program position. In addition, the Lieutenant Colonel became Complainant's new supervisor. On August 9, 2011, Complainant had scheduled a meeting for several individuals to receive a briefing from an Agency contractor. Complainant was not scheduled to attend the meeting, and the Lieutenant Colonel was aware that Complainant had a meeting with the EEO Office that same day. One attendee, the Chief Scientist, was agitated at Complainant's absence and notified the Lieutenant Colonel and S2 about the matter. The Lieutenant Colonel informed the attendees that Complainant was in a meeting in the EEO Office, documented the event, and sent it to Complainant. On March 8, 2011, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of national origin (Hispanic) and in reprisal for prior protected EEO activity when: 1. On November 29, 2010, as a result of his Freedom of Information Act (FOIA) request, he learned that his chain of command, beginning with his immediate supervisor (S1), did not support his classification appeal to convert his position to the GS-14 level; 2. On August 23, 2010, he learned that S1 was emailing Mexican jokes about feeding Mexicans to alligators to his co-workers. On August 26, 2011, Complainant amended his complaint to allege that the Agency subjected him to reprisal for prior protected EEO activity when: 3. On August 16, 2011, the Lieutenant Colonel called Complainant into his office and verbally reprimanded him regarding a meeting he missed due to his participation in the investigation of his EEO complaint on August 9, 2011. Complainant contends that his second level supervisor (S2) reprised against him by directing the Lieutenant Colonel to document the incident to reflect negatively upon him. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing, and the AJ held a hearing on December 18 and 19, 2013, and January 14, 2014, and issued a decision on June 25, 2015. In her decision, the AJ first determined that Complainant established a prima facie case of discrimination as to claim (1). S2 testified that four employees appealed their classifications during the NSPS to GS conversion process. The record evidence revealed that S2 supported the promotions of two employees outside of Complainant's protected class, but not the promotions of Complainant and another Hispanic employee. As a result, the AJ found that Complainant had established a prima facie case of national origin discrimination. Next, the AJ found that the Agency had articulated legitimate, nondiscriminatory reasons for its actions. S1 testified that he did not concur in Complainant's appeal because he did not agree with the GS-14 position description on which Complainant based his appeal. S1 maintained that the GS-14 position description did not represent duties that the Agency required for the position. S2 testified that he did not concur in Complainant's appeal because S1 did not support it. Additionally, S2 testified that the proposed position description at the GS-14 level did not accurately describe Complainant's desired role in the organization. S2 averred that Complainant worked as a Program Coordinator and not as a Senior Engineer as set forth in the position description for a GS-14 General Engineer. In arguing that the Agency's reasons for its actions were pretextual, Complainant alleged that management was willing to change the position descriptions of other employees to accurately reflect their duties and responsibilities, but refused to do so for him because of discrimination and reprisal. Complainant contended that his actual duties and responsibilities as a Program Coordinator for the Hard Target Defeat Program were GS-14 level duties which should have resulted in a promotion. Complainant argued that the fact that he was asked to coordinate such duties as the Massive Ordinance Penetrator project, a project traditionally held by engineers at the GS-14 or GS-15 level, was additional evidence that he should have been promoted. Further, Complainant argued that S1's claim that the position description should reflect only what the organization needs for that position was a pretext because he was willing to fashion the position description of other employees to reflect actual duties resulting in promotions. For example, Complainant cited S1 and S2's support of "updating" the position description for another employee from GS-12 to GS-13 to reflect a special project she had completed. S1 claimed that Complainant's proposed higher-graded position description did not reflect his actual duties, but Complainant argued that the position description S1 proposed was not an accurate reflection of his duties and responsibilities. Complainant contended that his duties as a Program Coordinator were more extensive than those of a GS-13 General Engineer because he was responsible for the budget and contract management in addition to designing and evaluating the weapons program. The AJ found that S1 and S2 did not refute Complainant's description of his actual duties nor did they explain why Complainant's actual duties did not support a GS-14 rating. The AJ determined that S1's rationale for rating Complainant at the GS-13 level was inconsistent and not believable. S1's view of the role of the position description was contrary to the instructions given by the Human Resources Office. The Human Resources Specialist testified that the position description is a "pay document" that sets out the kind of work an employee does, their level of responsibility, and was designed to accurately reflect what an employee did and what pay they should receive. Further, the AJ found that S1 was not credible in other testimony, including when he stated that Complainant approved the position description he proposed. S2 contradicted S1's testimony when he recalled that Complainant had complained about S1's failure to consult with him about his position description before submitting it. The AJ found that the evidence revealed that S1 deliberately failed to follow Agency protocol for the conversion process to conform Complainant's position description to his actual duties. Additionally, the AJ found that S1 and S2 acknowledged the complex nature of the duties of a Program Coordinator for the Hard Target Defeat Program and the Massive Ordinance Penetrator project, but downplayed Complainant's qualifications and expertise in performing the duties. Further, they failed to explain how they supported a GS-14 promotion for another employee when he was responsible for the Massive Ordinance Penetrator project, but opposed Complainant's request for the same promotion. Additionally, S2 failed to consider Complainant's completion of a graduate-level program at the Sandia Weapons Laboratory and his Level II Contract Certification, both qualifications that S2 himself held. The AJ noted that S1 did not seem to know what Complainant's job duties were. For example, S1 claimed that Complainant was not qualified for a GS-14 position because he did not brief Senior Executive Service level employees. Complainant testified however, that he regularly briefed high-level managers at the GS-15 level and above about the weapons programs he managed. The AJ concluded that promotions in the office were often granted without competition, but with respect to Complainant's request, he was treated less favorably. For example, when confronted with Complainant's request for promotion, S2 testified that he wanted to be fair by advertising a position for competition. S2 failed to explain why he would approve non-competitive promotions for some, but required a competitive process for Complainant. The AJ determined that the evidence showed that whether the Agency granted an employee a promotion was a random, arbitrary, and subjective process that was not open to competition. Managers randomly selected employees for promotion through various means such as accretion of duties, the conversion process, or non-competitively without notice to other qualified candidates. Lastly, Complainant elicited evidence that S1 harbored racially insensitive stereotypical attitudes towards Hispanics, which revealed his bias against Complainant. S1 sent an email to a co-worker containing an offensive cartoon suggesting using alligators to deter and kill illegal immigrants crossing the border from Mexico. In addition, S1 sent a highly offensive quote comparing illegal immigrants to drug dealers. The AJ concluded that, based on the preponderance of the evidence demonstrating S1 and S2's disparate treatment of Complainant's conversion when compared to similarly situated employees, and their failure to support Complainant's grade appeal to a higher level was more likely than not because of his national origin. Regarding his reprisal claim, the AJ found that Complainant established a prima facie case of reprisal based on the close proximity in time between Complainant's protected EEO activity and his supervisors' denial of his grade appeal. Further, the AJ determined that S1's rationale for the lower-graded position description that he submitted on Complainant's behalf was a pretext to mask a retaliatory motive. Therefore, the AJ found that Complainant established that he was subjected to reprisal. As to claim (3), the AJ found that the Agency had articulated legitimate, non-retaliatory reasons for its actions. Complainant claimed that the Lieutenant Colonel retaliated against him when he verbally reprimanded him and memorialized the incident in an email. The Lieutenant Colonel claimed that he documented the incident because the Chief Scientist had a strong reaction to Complainant's failure to attend the meeting. Both S2 and the Lieutenant Colonel testified that they viewed the matter as a simple misunderstanding and nothing anything requiring disciplinary action. The AJ noted that while Complainant viewed the email as an overreaction and a reprimand, the contents of the email do not suggest that any disciplinary action would be taken against him. The Lieutenant Colonel testified that it was his normal practice to document incidents as a way to keep records of events. Therefore, the AJ found that Complainant failed to show that the Agency's reasons for its actions were pretext for unlawful reprisal. Finally, as to the incident in claim (2), the AJ found that the single instance of an offensive email was insufficiently severe or pervasive to establish a hostile work environment. The AJ noted that S1 did not share the email with Complainant; rather, Complainant's co-worker shared it with him in a one-on-one conversation. At best, this was an instance of Complainant's co-worker sharing an offensive email with him in an isolated occurrence. As a result, the AJ found that Complainant's claim of unlawful harassment must fail. Turning to remedies for Complainant's discriminatory and retaliatory non-promotion, the AJ found that Complainant testified that he experienced sleeplessness, negative impact on his family life, feelings of frustration, and emotional distress. Complainant requested $50,000.00 in non-pecuniary compensatory damages, and the AJ determined that that amount was adequate to compensate him for his emotional distress. Additionally, the AJ awarded Complainant $24,501.39 in attorney's fees, and $1,562.47 in costs. Further, the AJ ordered the Agency to place Complainant in the GS-14 General Engineer position retroactive to August 15, 2010, to pay Complainant back pay plus interest and other benefits due, and to post a notice. The Agency subsequently issued a final order reversing the AJ's decision and the relief ordered therein. The Agency then filed the instant appeal. CONTENTIONS ON APPEAL On appeal, the Agency contends that the AJ made several factual findings that were not supported by the record and failed to do a proper legal analysis. The Agency argues that the AJ erred in finding that Complainant established a prima facie case of national origin discrimination because the comparators cited were not similarly situated to Complainant. Next, the Agency contends that the AJ's determination that Complainant submitted a more accurate description of his duties than S1 was not supported by substantial evidence. The Agency argues that it articulated legitimate, nondiscriminatory reasons for not promoting Complainant and provided meaningful distinctions between Complainant and the Agency employees with whom he compared himself. The Agency contends that Complainant's personally written "self-assessment" regarding his duties supported the GS-13 grade determination, and he failed to follow procedures to appeal his grade determination. The Agency argues that Complainant is not a GS-14 because the duties he has performed since 2006 have remained unchanged since that time and do not warrant a higher grade. Accordingly, the Agency requests that the Commission affirm its final order. In response, Complainant contends that the AJ's decision finding that he was subjected to discrimination and reprisal is supported by substantial evidence. For that reason, Complainant requests that the Commission reverse the Agency's final order. STANDARD OF REVIEW Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. Nat'l Labor Relations Bd., 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 conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. 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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-16 (Nov. 9, 1999). ANALYSIS AND FINDINGS The Commission initially notes that neither party challenged the AJ's finding that Complainant was not subjected to reprisal as to claim (3) and failed to show that he was subjected to a hostile work environment as to claim (2). Nonetheless, the Commission finds that substantial record evidence supports the AJ's findings as to these claims. The Commission will next address the AJ's finding of discrimination and reprisal as to claim (1). Disparate Treatment To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13. To establish a prima facie case of reprisal, Complainant must show that (1) he engaged in protected EEO activity; (2) the Agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the Agency; and (4) a nexus exists between his protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). After a careful review of the record, the Commission discerns no basis to disturb the AJ's finding of discrimination and retaliation. The findings of fact are supported by substantial evidence, and the AJ correctly applied the appropriate regulations, policies, and laws. Initially the Commission notes that Complainant sought EEO counseling in December 2009, regarding the removal of his Massive Ordnance Penetration Project, and in July 2010, S1 and S2 opposed the GS-14 position description Complainant submitted in support of his grade determination appeal. In preparing the position description for conversion, S1 testified that he believed Complainant's position description should reflect what duties were required for the position, not the duties actually being performed. Hr'g Tr., Vol. 2, at 63. The AJ found S1's testimony not credible and contradicted by the Human Resources Specialist who testified that the position description was intended to be a pay document that determined how much an employee should be paid based on what work the employee performed and their level of responsibility. Hr'g Tr., Vol. 3, at 123. In addition, S1 testified that he asked his subordinates for input on his draft of their position descriptions, but that Complainant was "non-communicative and uncooperative." The AJ noted that S2 contradicted S1 on this point by stating that Complainant complained to him that S1 did not discuss his draft position description with him prior to it submission. ROI, at 304. Thus, substantial record evidence supports the AJ's finding that S1 deliberately failed to follow Agency protocol for the conversion process to conform Complainant's position description to his actual duties and responsibilities. Neither S1 nor S2 rebutted Complainant's description of his actual duties nor did they explain why those duties did not support a GS-14 rating. S1 indicated that the difference between a GS-13 and a GS-14 was that an employee at the GS-14 level briefed SES employees and made high-level decisions. Complainant confirmed that he briefed higher-level managers and SES employees and was responsible for making high-level decisions and recommendations on a regular basis. ROI, at 298. The AJ found that this was evidence of S1's lack of knowledge of Complainant's actual duties. S2 acknowledged that management had promoted employees through accretion of duties, and the conversion process was indeed a good opportunity for an employee to try to obtain a higher grade. Hr'g Tr., Vol. 3, at 63-64, 82. Nonetheless, S2 testified that management was reluctant to do so for Complainant and wished instead to advertise the position for competition "to make it fair across the board." Id. at 82. The AJ found that S2 failed to reconcile why other employees outside Complainant's protected class were promoted non-competitively through accretion of duties or the conversion process while requiring Complainant to go through the competitive process for promotion. Finally, substantial record evidence supports the AJ's finding that S1 exhibited racially insensitive attitudes towards Hispanics towards Hispanics based on his email to CW1 suggesting that the U.S. utilize alligators and a moat to deter illegal immigration and his inclusion of a quote comparing illegal immigrants to drug dealers. Hr'g Tr., Vol. 2, at 68-69; ROI, Ex. F-9. Substantial record evidence supports the AJ's finding that these offensive emails demonstrated an intent to discriminate against Complainant based on his national origin. After reviewing the instant record and considering arguments on appeal, the Commission finds that the AJ made reasonable credibility determinations, which are not contradicted by objective evidence, and her factual findings are supported by substantial evidence. Therefore, the Commission affirms the AJ's finding of discriminatory and retaliatory discrimination as to claim (1). REMEDIES Non-pecuniary Compensatory Damages When discrimination is found, the Agency must provide Complainant with a remedy that constitutes full, make-whole relief to restore her as nearly as possible to the position she would have occupied absent the discrimination. See, e.g., 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. U.S. Postal Serv., EEOC Appeal No. 01933395 (July 21, 1994). Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant who establishes unlawful intentional discrimination under either Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. or Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. may receive compensatory damages for past and future pecuniary losses (i.e., out-of-pocket expenses) and non-pecuniary losses (e.g., pain and suffering, mental anguish) as part of this "make whole" relief. 42 U.S.C. § 1981a(b)(3). In West v. Gibson, 527 U.S. 212 (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). Non-pecuniary losses are losses that are not subject to precise quantification, i.e., emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, injury to character and reputation, injury to credit standing, and loss of health. See EEOC Notice No. 915.302 at 10 (July 14, 1992). There is no precise formula for determining the amount of damages for non-pecuniary losses except that the award should reflect the nature and severity of the harm and the duration or expected duration of the harm. See Loving v. Dep't of the Treasury, EEOC Appeal No. 01955789 (Aug. 29, 1997). The Commission notes that non-pecuniary compensatory damages are designed to remedy the harm caused by the discriminatory event rather than punish the Agency for the discriminatory action. Furthermore, compensatory damages should not be motivated by passion or prejudice or "monstrously excessive" standing alone but should be consistent with the amounts awarded in similar cases. See Ward-Jenkins v. Dep't of the Interior, EEOC Appeal No. 01961483 (Mar. 4, 1999). The Commission notes that the Agency raised no arguments regarding the amount awarded by the AJ in compensatory damages. Based upon the evidence provided by Complainant, the AJ found that $50,000.00 was the appropriate award based on the Agency's discriminatory non-promotion of Complainant in August 2010. Upon review, the Commission finds that the AJ's award is appropriate and supported by the substantial evidence of the record. See Bomske v. Dep't of Veterans Affairs, EEOC Appeal No. 0720120025 (Aug. 7, 2013) (complainant awarded $50,000 where agency's discrimination resulted sleeplessness, depression, stress, and mood changes); Cavanaugh v. U.S. Postal Serv., EEOC Appeal No. 07A20102 (Nov. 12, 2003) ($50,000.00 awarded in non-pecuniary damages where complainant experienced exacerbation of her depression, anxiety symptoms, 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). The Commission finds that this amount takes into account the severity of the harm suffered, and is consistent with prior Commission precedent. Finally, the Commission finds this award is not "monstrously excessive" standing alone, is not the product of passion or prejudice, and is consistent with the amount awarded in similar cases. See Jackson v. U.S. Postal Serv., EEOC Appeal No. 01972555 (Apr. 15, 1999) (citing Cygnar v. City of Chicago, 865 F. 2d 827, 848 (7th Cir. 1989)). Attorney's Fees 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); see also EEOC's Management Directive 110 (MD-110) (Nov. 9, 1999) Chapter 11. 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)(2)(ii)(B); Hensley v. Eckerhart, 461 U.S. 424 (1983). The degree of success is an important factor in calculating an award of attorney's fees. Farrar v. Hobby, 506 U.S. 103 (1992). 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, he should recover fees that are reasonable in relation to the results obtained. Hensley, 461 U.S. at 43. The AJ awarded Complainant $24,501.39 in attorney's fees and $1,562.47 in costs. The Agency did not submit any arguments challenging the AJ's award of attorney's fees and costs. Accordingly, the Commission finds no basis to disturb the AJ's award of $24,501.39 in attorney's fees and $1,562.47 in costs. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, the Commission REVERSES the Agency's final order and AFFIRMS the AJ's finding of discrimination and reprisal as to claim (1). In addition, the Commission AFFIRMS the Agency's final order and the AJ's decision finding no discrimination and reprisal as to claims (2) and (3). The Commission REMANDS the matter back to the Agency to take corrective action in accordance with this decision and the order herein. ORDER Within 60 days of the date this decision becomes final, the Agency shall: 1. Promote Complainant to the General Engineer, GS-801-14 position, retroactive to August 15, 2010 or a substantially equivalent position in the Agency's Defense Threat Reduction Agency, Kirtland Air Force Base, New Mexico. 2. Determine the appropriate amount of back pay and all other benefits owed to Complainant (with interest) pursuant to 29 C.F.R. § 1614.501. This includes appropriately adjusted contribution to her Thrift Savings. Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, as appropriate, 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 60 days of the date the Agency determines the amount it believes to be due. 3. Pay Complainant $50,000.00 in non-pecuniary compensatory damages. 4. Pay Complainant attorney's fees in the amount of $24,501.39 and $1,562.47 in costs. 5. Provide training to the responsible management officials regarding their responsibilities under EEO laws with special emphasis on national origin discrimination and retaliation. 6. Consider taking appropriate disciplinary action against the responsible management officials. The Commission does not consider training to be a 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 reasons for its decision not to impose discipline. If any of the management officials have left the Agency's employ, the Agency shall furnish documentation of their departure dates. 7. The Agency shall immediately post a notice in accordance with the paragraph below. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented. POSTING ORDER (G0914) The Agency is ordered to post at its Research and Development Enterprise, Kirtland Air Force Base facility 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)(l)(iii)), he 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 (M0416) 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. The requests 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 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 Director Office of Federal Operations 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.