U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lashawna C.,1 Complainant, v. Thomas E. Perez, Secretary, Department of Labor, Agency. Appeal No. 0720160020 Hearing No. 532-2012-00100X Agency No. CRC-12-05-048 DECISION Following its July 11, 2016, final order, the Agency filed a timely appeal pursuant to 29 C.F.R. § 1614.403(a). On appeal, the Agency requests that the Commission affirm its rejection of an Equal Employment Opportunity Commission Administrative Judge's (AJ) finding that Complainant was subjected to discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., when she was subjected to harassment because of her religion. The Agency also requests that the Commission affirm its rejection of the relief ordered by the AJ but affirm the AJ's finding of no discrimination with respect to the remaining claims. For the following reasons, the Commission MODIFIES the Agency's final order. ISSUES PRESENTED The issues presented are: 1) whether there is substantial evidence supporting the Equal Employment Opportunity Commission (EEOC) Administrative Judge's (AJ) finding that Complainant proved that she was subjected to religious harassment by her first-level supervisor when he referred to a "Hebrew slave;" and 2) whether the AJ properly ordered EEO training for the responsible management official; ordered the Agency to pay $10,000 in non-pecuniary compensatory damages; and determined that Complainant was entitled to $6,240 in attorney's fees. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a term Workers' Compensation Claims Examiner, GS-12, at the Agency's Office of Workers' Compensation Programs (OWCP) in Cleveland, Ohio. On December 7, 2011, Complainant initiated contact with an EEO Counselor, and on January 25, 2012, filed an EEO complaint in which she alleged that the Agency discriminated against her on the bases of religion (Jewish), sex (female), age (57 years old) when: 1. On September 29, 2011, she learned that it was determined that she did not meet the minimum requirements for a permanent GS-11 Fiscal Operations Specialist position. Additionally, Complainant alleged that she was subjected to discrimination and harassment on the bases of age, religion, and sex when: 2. In September 2008, the Agency denied her religious leave; 3. On February 24, 2011, Complainant received an email from her supervisor (S1) in which he referred to himself as working like "a Hebrew slave;" 4. Beginning on September 11, 2011, management denied her request for religious leave and delayed approval until sometime in Fall 2011; 5. On November 29, 2011, Complainant was notified by email that a Christmas movie would be shown during Combined Federal Campaign (CFC) fundraising events during work hours, after which she requested an alternative movie. Because of her request, she received badgering emails before the movie was canceled and subsequently heard harassing comments regarding the Jewish faith; 6. On December 13, 2011, she was subjected to viewing religious items offered for auction for CFC fundraising, including angels and Christmas stockings, gift cards, and a Christmas film; and 7. Beginning on December 19, 2011, she was subjected to a Continuation of Pay (COP) audit, which resulted in 17 hours of sick leave being removed from her time and attendance balance. Complainant was also directed to repay leave. At the conclusion of 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 AJ. On September 2, 2012, Complainant timely requested a hearing. AJ's January 26, 2015 Summary Judgment On August 12, 2013, the Agency filed a Motion for Decision without a Hearing, to which Complainant responded in opposition on September 9, 2013. On January 26, 2015, the AJ issued summary judgment in favor of the Agency, except with regard to claim 3. Specifically, the AJ found that for claim 1, Complainant failed to establish a prima facie case of discrimination because she did not show that she was qualified for the position. The AJ determined that the undisputed facts showed that Complainant lacked requisite experience in performing fiscal review responsibilities, research and analysis of complex billing issues, or auditing or reviewing for fraudulent transactions. Regarding claim 2, the AJ found that this matter was initiated by untimely EEO Counselor contact. Regarding claim 4, the AJ noted that S1 stated that he was unfamiliar with the Agency's leave policy and did not immediately grant the request for religious compensatory time, but the District Director granted her request on September 22, 2011. With respect to claims 5 and 6, the AJ determined that it is undisputed that after Complainant complained about the proposed showing of the movie "National Lampoon's Christmas Vacation" at the CFC fundraiser, the movie was not shown. The AJ further noted that when employees brought items such as angels and stockings to a charitable auction, Complainant was never required to enter the room containing these items for any work-related purpose. The AJ concluded that the evidence did not support a finding that the display of Christmas paraphernalia constitutes religious harassment. Regarding claim 7, the AJ noted that the Agency explained that an audit was conducted because COP was erroneously authorized for Complainant two years after the date of an injury, which resulted in Complainant losing 17 hours of sick leave and being directed to repay the leave to correct the error. Thus, in addition to dismissing claim 1, the AJ concluded that Complainant failed to prove that she was subjected to unlawful harassment or discrimination with respect to claims 2, 4, 5, 6, and 7. Regarding claim 3, the AJ found that there were genuine issues of material fact concerning the "Hebrew slave" email sent to Complainant by S1, which made that claim inappropriate for summary judgment. Therefore, the AJ held a hearing on claim 3 on July 22, 2015. AJ's May 26, 2016 decision After the hearing on claim 3, the AJ issued a decision on the matter dated May 26, 2016. In the decision, the AJ determined that Complainant's complaint consists of interrelated claims of alleged religious discrimination, and as such, is a single claim that she was subjected to a hostile work environment. The AJ therefore found that claim 3 was timely raised because some of the incidents in his complaint occurred within 45 days of her initial EEO Counselor contact on December 9, 2011. The AJ then found that it was undisputed that S1 jokingly referred to himself as working as a hard as "a Hebrew slave" in an email. The AJ determined that this comment to Complainant, a Jewish subordinate, was "grossly insensitive, insulting and condescending." The AJ stated that federal supervisors should know that Jews have been subjected to genocide, anti-Semitism, and slavery, and workplace jesting regarding slavery with reference to a specific protected group which has experienced slavery is "profoundly inappropriate." The AJ also determined that Complainant credibly testified that members of her family were executed by the Nazis during the Holocaust; that she was named after one of her executed family members; and she was offended, saddened, and impacted by S1's use of the term "Hebrew slave." The AJ concluded that Complainant was subjected to religious harassment. In order to remedy the unlawful harassment, the AJ ordered the Agency to pay Complainant $10,000 in compensatory damages; provide S1 with mandatory EEO training, with an emphasis on religious discrimination and harassment; to post notices of discrimination in conspicuous places in the Agency's Cleveland offices; and to take reasonable steps to ensure copies of the notice are not altered, defaced, or covered by other material. In a decision dated July 26, 2016, the AJ issued a decision further ordering the Agency to pay Complainant $10,980.00 in attorney's fees. On July 11, 2016, the Agency issued a final order that did not fully implement the AJ's decision. Specifically, the Agency accepted the AJ's decision with regard to claims 1, 2, 4, 5, 6, and 7, but rejected the AJ's decision with respect to claim 3. The Agency simultaneously appealed the matter to the Commission. CONTENTIONS ON APPEAL On appeal, the Agency contends that with respect to claim 3, the AJ erred when she found that this matter was timely filed. The Agency argues that claim 3 is untimely because this incident occurred on February 24, 2011, but Complainant did not initiate EEO Counselor contact until December 11, 2011. The Agency contends that the email incident is not related to incidents that occurred within 45 days of her Counselor contact, and therefore, is not part of the timely raised hostile work environment claim. The Agency further maintains that the AJ erred in finding that Complainant was subjected to a hostile work environment based on religion regarding the "Hebrew slave" comment. The Agency contends that the email comment was not severe or pervasive enough to constitute a hostile work environment because it was not directed at Complainant and only occurred once. Additionally, the Agency maintains that the AJ erroneously awarded compensatory damages without objective evidence of harm. The Agency contends that the record contains "only an isolated comment that [Complainant] had been 'hurt emotionally' by the demeaning remarks." In reply, Complainant maintains that the AJ properly found that claim 3 was initiated by timely EEO Counselor contact. Complainant argues that although there were several different actions which she alleged constituted harassment, religious discrimination was the common nexus between them all. Complainant further contends that the AJ properly held that S1's use of the term "Hebrew slave" was sufficiently severe to constitute a hostile work environment because of her personal family experiences with the Holocaust. Complainant also contends that the AJ's determination on damages is supported by substantial evidence because she testified about how the email comment stirred up disturbing memories about the Holocaust's impact on her family. ANALYSIS AND FINDINGS As an initial matter, we note that the Agency implemented the AJ's determination with respect to claims 1, 2, 4, 5, 6, and 7. Complainant does not challenge the AJ's determination with respect to these matters. The Agency only challenges the AJ's finding that Complainant was subjected to religious harassment with respect to claim 3, as well as the remedies ordered because of this finding. Therefore, we will only address the AJ's decision with respect to claim 3. 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. 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 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 EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). Timely EEO Counselor Contact The Agency maintains that the AJ erred in finding that claim 3 was initiated by timely EEO Counselor contact. Upon review, we determine that claim 3 cannot be viewed in an isolated or piecemeal manner. Instead, Complainant's complaint consists of Complainant's overall, interrelated claim that she was subjected to various incidents of religious harassment. The fact that S1 was not the alleged actor in every incident does not undermine the pattern aspect of Complainant's overall claim. The unifying theme of each claim is that within a relatively short period of time, Complainant was subjected to incidents of harassment and discrimination because she is Jewish. See Meaney v. Dep't of the Treasury, EEOC Request No. 05940169 (Nov. 3, 1994) (the "pattern aspect" of a complainant's allegations should not be ignored and defined in a piecemeal manner where an analogous theme unites the matter complained of). The alleged incidents in Complainant's claim collectively constitute one unlawful employment practice, a hostile work environment based on religion. See National Railroad Passenger Corp. v. Morgan. Jr., 536 U.S. 101, 117 (2002). As such, Complainant's ongoing harassment claim contains matters (claims 5, 6, and 7) that occurred within 45 days of Complainant's initial EEO Counselor contact. Consequently, we find that claim 3 was initiated by timely EEO Counselor contact. Claim 3: Harassment In order to establish a claim of hostile environment harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an environment, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In this case, we first find that Complainant is a member of a statutorily protected class because she is a member of the Jewish faith. Regarding prong 2, it is undisputed that on February 24, 2011, Complainant and S1 exchanged emails about Complainant's work hours and schedule. During the exchange, Complainant stated that government employees generally work shorter hours than private sector employees, and she was "working like a civilian." In response, S1 stated the following: Wow . . . then I must be a damn fool . . . cause I've been working like a Hebrew slave the last 9 years and don't have enough time to take off . . . at least somebody got it right. Report of Investigation (ROI), p. 226. Upon review, we note that the word "Hebrew" is often used to refer to Semitic persons who identify as descendants of Abraham, the biblical patriarch of Judaism. Collins English Dictionary -Complete and Unabridged 2012 Digital Edition, available online at http://www.dictionary.com/browse/hebrew . Moreover, when used to generally refer to contemporary Jewish persons, it is sometimes considered archaic or offensive. Id. Coupled with the word "slave," the term "Hebrew slave" is particularly negative and offensive when used so flippantly. As such, we find that the use of the term "Hebrew slave" is inherently unwelcome when uttered in this particular context, especially when communicating with a Jewish person. There is no evidence that Complainant welcomed such a comment. Therefore, we find that S1's comment was unwelcome. With regard to prong 3, it is apparent that the term "Hebrew slave" pertains specifically to Jewish persons, and as such, is inherently based on religion. Regarding prong 4, we note that in evaluating whether the conduct is severe or pervasive enough to create a hostile work environment, the harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). In this case, Complainant testified that she is a member of a religious group that has experienced brutal persecution and bigotry, from Russian pogroms to the murder of millions by the Nazi regime. HT, p. 20. Complainant further stated that some of her family members were placed in death camps and executed during the Holocaust; she is named after a relative who was executed; and her father fled Europe and spent a great amount of time trying to recover his family possessions after the Holocaust. S1 testified that during the relevant time period, he was aware that Complainant is Jewish because she requested leave for religious purposes, but he used the term "Hebrew slave" in his email to her because this was a "common term that's used to reflect individuals who work with little means to produce great things." Hearing Transcript (HT), pp. 49, 50. He further testified that he understood that the term related to the trials Jewish people endured while in bondage in Egypt, as recounted in the Bible. The Agency maintains that S1's comment was not severe enough to constitute harassment because he applied the term to himself, instead of to Complainant. Upon review of this matter, we note that the Commission has found that under certain circumstances a single or limited number of epithets or slurs may constitute harassment under Title VII. See Brooks v. Department of the Navy, EEOC Request No. 05950484 (June 25, 1996) (in some circumstances, the single use of a racial epithet or slur that "dredge[s] up the entire history of racial discrimination in this country" may be enough to constitute a hostile work environment). In this case, S1 made the comment in an email to Complainant, and S1 knew that Complainant is Jewish. Although S1 only made such a comment once, the comment packed a painful, potent punch. Specifically, S1's comment made light of the long and painful history of Jewish persecution and genocide. Moreover, the comment was especially personal for S1 because it dredged up memories of how her family was targeted for systematically murder, incarceration, and deportation during the Holocaust. Complainant testified that S1's comments made her "incredibly sad," which we find to be a reasonable response to S1's actions. The fact that S1 may have intended his comment to be a joke or a cliché does not soften the offense any more here than it would if he had uttered an equally offensive racial slur. We determine that a reasonable person in Complainant's circumstances would find that S1's comment was severe enough to create a hostile work environment based on her religion. Thus, we find that the AJ properly found that Complainant was subjected to religious harassment. With regard to liability, an employer is subject to vicarious liability for harassment when it is created by a supervisor with immediate (or successively higher) authority over the employee. See Burlington Industries, Inc., v. Ellerth, 524 U.S. 742, 118 s. Ct. 2257, 2270 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275, 2292-93 (1998). However, where the harassment does not result in a tangible employment action, an agency can raise an affirmative defense, which is subject to proof by a preponderance of the evidence, by demonstrating: (1) that it exercised reasonable care to prevent and correct promptly any harassing behavior; and (2) that a complainant unreasonably failed to take advantage of any preventive or corrective opportunities provided by the agency or to avoid harm otherwise. See Burlington Industries, supra; Faragher, supra; Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999). At a minimum, an employer must have a policy and complaint procedure against harassment that contains the following elements: (1) a clear explanation of what constitutes prohibited conduct; (2) assurances that employees who bring complaints of harassment or provide information related to such complaints will be protected against retaliation; (3) a clearly described complaint process that provides possible avenues of complaint; (4) assurance that the employer will protect the confidentiality of harassment complaints to the extent possible; (5) a complaint process that provides a prompt, thorough, and impartial investigation; and (6) assurance that the employer will take immediate and appropriate corrective action when it determines that harassment has occurred. Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999) ("Vicarious Liability Guidance"), at 17. The record reveals that on or about April 8, 2011, the Agency head issued a harassment policy that outlined prohibited conduct; contains assurances against retaliation; clearly describes that the process for possible avenues of complaints; contains assurances about protecting the confidentiality of complaints; and provides that corrective action will be taken if harassment has occurred. However, we note that Complainant stated that she was unaware of any policy in place for reporting harassment and that she was not given any training or information about harassment by the Agency regarding its harassment policy. Further, we note that the policy in the record was issued months after the email incident.2 Additionally, the Agency has not provided any evidence detailing how this policy was disseminated, or that Complainant specifically was provided with a copy of the policy. Therefore, we find that there is no persuasive evidence that the Agency exercised reasonable care to prevent and correct the harassment, or that Complainant unreasonably failed to take advantage of any preventive or corrective opportunities provided by the Agency or to avoid harm otherwise. Consequently, we find that the Agency is liable for the harassment. Non-Pecuniary Compensatory Damages Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant who establishes unlawful discrimination or harassment 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). To receive an award of compensatory damages, a complainant must demonstrate that she has been harmed as a result of the agency's discriminatory action; the extent, nature, and severity of the harm; and the duration or expected duration of the harm. Rivera v. Dep't of the Navy, EEOC Appeal No. 01934157 (July 22, 1994), req. for recons. denied, EEOC Request No. 05940927 (Dec. 11, 1995); Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 (July 14, 1992), at 11-12, 14. Although damage awards for emotional harm can greatly vary, and there are no definitive rules governing amounts to be awarded, compensatory damage awards must be limited to the amounts necessary to compensate the complainant for actual harm, even if that harm is intangible. Id. at 7. It should take into account the severity of the harm and the length of the time the injured party has suffered from the harm. See Carpenter v. Dep't of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995). The absence of supporting evidence may affect the amount of damages deemed appropriate in specific cases. See Lawrence v. U.S. Postal Serv., EEOC Appeal No. 01952288 (Apr. 18, 1996). In Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993), the Commission explained that "objective evidence" of non-pecuniary damages could include a statement by a complainant explaining how she was affected by the discrimination. A complainant could also submit documentation of medical or psychiatric treatment related to the effects of the discrimination. Id. In this case, Complainant testified that S1's conduct made her "incredibly sad," dredged up horrific memories of the Holocaust and its impact on her family, and caused her to experience emotional pain. Our finding that Complainant was subjected to religious harassment, coupled with Complainant's testimony that she was negatively impacted by S1's conduct, persuades us that the AJ's award of $10,000 is supported by substantial evidence. This award takes into account the nature of the discriminatory action and the severity of the harm suffered by Complainant and is also consistent with our prior decisions. See Rowan v. Dep't of Veterans Affairs, EEOC Appeal No. 0120070384 (June 19, 2009) (Commission awarded Complainant $10,000 for non-pecuniary damages where Complainant established that at least some of his stress, humiliation, anxiety, sleeplessness, fears of termination, and depression were attributable to the discriminatory conduct); Zehe v. National Aeronautics and Space Administration, EEOC Appeal No. 0120113282 (Mar. 26, 2013)( Commission awarded Complainant $10,000 for non-pecuniary damages where Complainant established he suffered from a loss of enjoyment of life, fear of losing his job, loss of appetite, insomnia, nightmares, and panic attacks when the Agency failed to provide a reasonable accommodation); Complainant v. Dept. of Homeland Security, 0720100039 (Apr. 24, 2012) ($10,000 non-pecuniary compensatory damages award where the complainant suffered humiliation, stress, and loss of sleep and appetite as a result of unlawful discrimination). Attorney's Fees Title VII authorizes the award of reasonable attorney's fees, including for an attorney's processing of a compensatory damages claim. 29 C.F.R. § 1614.501(e). To establish entitlement to attorney's fees, Complainant must first show that she is a prevailing party. Buckhannon Bd. and Care Home Inc. v. W. Va. Dept. of Health and Human Resources, 532 U.S. 598 (2001). A prevailing party for this purpose is one who succeeds on any significant issue, and achieves some of the benefit sought in bringing the action. Davis v. Dep't of Transp., EEOC Request No. 05970101 (Feb. 4, 1999) (citing Hensley v. Eckerhart, 461 U.S. 427, 433 (1983)). The fee award is ordinarily determined by multiplying a reasonable number of hours expended on the case by a reasonable hourly rate, also known as a ""lodestar." See 29 C.F.R. § 1614.501(e)(2)(ii)(B); Bernard v. Dep't of Veterans Affairs, EEOC Appeal No. 01966861 (July 17, 1998). In determining the number of hours expended the Commission recognizes that the attorney "is not required to record in great detail the manner in which each minute of his time was expended." Id. However, the attorney does have the burden of identifying the subject matters which he spent his time by submitting sufficiently detailed and contemporaneous time records to ensure that the time spent was accurately recorded. Id. Further, 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 degree to which counsel is precluded from taking other cases; (5) the relief sought and results obtained; and (6) the nature and length of the attorney-client relationship. See Cerny v. Dep't of the Army, EEOC Request No. 05930899 (Oct. 19, 1994). Complainant is only entitled to an award for time reasonably expended. It does not always follow that the amount of time actually expended is the amount of time reasonably expended. Elvin v. Dep't of Labor, EEOC Request No. 01943425 (Aug. 31, 1995). Rather, "billing judgment" is an important component in fee setting, and hours that would not be properly billed to a private client are also not properly billed to an agency pursuant to a successful EEO claim. Id. Counsel for the prevailing party should make a "good faith effort to exclude from a fee request hours that are excessive, redundant or otherwise unnecessary." See Bernard, EEOC Appeal No. 01966861. In this case, the record reveals that on May 26, 2016, the AJ directed Complainant's attorney to submit a "Verified Statement of Attorney's Fees and Costs." On June 9, 2016, Complainant's attorney submitted a request for $10,980 in attorney's fees. The request was accompanied by detailed billing statements and affidavits regarding the attorney's legal background. Specifically, Complainant's attorney claimed that he performed 36.6 hours on claim 3. The attorney also provided an affidavit attesting that he was admitted to the Ohio Bar in 1991 to practice law; practices as a solo practitioner in the field of employment discrimination and civil rights; and has a base hourly rate of $300 per hour for litigation. On July 29, 2016, the Agency filed a response in which it maintained that Complainant should be awarded only $5,998 in attorney's fees because only those fees incurred after the issuance of the AJ's partial summary judgment decision were all related to Complainant's prevailing email claim. The Agency argued that all attorney's fees claimed from September 2012 through September 2013 should be reduced by at least 80 percent because Complainant only prevailed on one of her seven claims, and the bulk of her attorney's response to its Motion for a Decision without a Hearing is focused on her unsuccessful non-selection claim. The AJ found that the hourly rate charged by Complainant's attorney was reasonable and consistent with the prevailing rate in the Cleveland area. Therefore, the AJ ordered the Agency to pay Complainant's attorney $10,980 in attorney's fees for 36.6 hours on this case. Upon review, we first note that the Agency does not contest the AJ's determination that $300 per hour is a reasonable rate in this case. Therefore, we will not disturb that determination. We further note that Complainant's attorney asserts that he worked on claim 3 for a total of 36.6 hours from September 2012, until June 2016. As such, this time span roughly corresponds with Complainant's request for a hearing until the AJ's issuance of a decision on claim 3. The fee petition further reveals that Complainant amassed attorney's fees related to the AJ's Acknowledgement and Order; responding to the Agency's discovery requests; responding to discovery requests to the Agency; preparing a Motion to Compel Discovery; responding to the Agency's response to the Motion to Compel Discovery; reviewing and responding to Agency discovery responses and Notice of Prehearing Conferences; attending settlement conferences; attending depositions; reviewing and responding to the Agency's Motion for a Decision without a Hearing; reviewing the AJ's summary judgment decision; preparing the pre-hearing statement; a phone conference with the AJ; hearing preparation; attending the hearing; preparation of a closing argument brief; reviewing the Agency's closing argument brief; reviewing the decision and award; and preparing the fee statement. With respect to the hours billed, the Agency maintains that the attorney's fees award should be reduced by at least 80 percent because he only prevailed on claim 3. Courts have held that fee applicants should exclude time expended on "truly fractionable" claims or issues on which they did not prevail. See Nat'l Ass'n of Concerned Veterans (NACV) v. Sec'y of Def., 675 F.2d 1319, 1337 n. 13 (D.C. Cir. 1982). However, claims are fractionable or unrelated when they involve "distinctly different claims for relief" that are based on different legal theories. Hensley v. Eckerhart, 461 U.S. 424, 434-35 (1983). However, in cases where a claim for relief involves "a common core of facts or will be based on related legal theories" a fee award should not be reduced simply because the plaintiff/complainant failed to prevail on every contention raised in the lawsuit. Id. Instead, "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." See EEO MD-110, at Ch. 11, § IV.7. In this case, as explained above, Complainant's complaint represents a claim that she was subjected to a series of interrelated incidents that created a hostile work environment based on religion during a relatively short period of time. Although she only prevailed with regard to one incident, the unsuccessful claims are intertwined and embedded into her ongoing harassment claim. See Mannon v. U.S. Postal Serv., EEOC Appeal No. 0720070074 (Apr. 4, 2012). As such, we do not find that claim 3 is distinct in all respects from the unsuccessful claims. See Diaz v. Dep't of Justice, EEOC Appeal No. 0120101054 (July 18, 2012) (claims are not distinct in all respects for purposes of attorney's fees because they involve the same period of harassment and thus involve "a common core of facts"). Finally, we find that the amount of attorney's fees requested by Complainant's attorney is rather reasonable in light of the duration of his representation, the complexity of this case, and the amount of work produced. Consequently, we find that the AJ's award of attorney's fees in the amount of $10,980 is supported by substantial evidence. 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 determination with respect to claim 3 because the AJ's determinations are supported by substantial evidence. The Commission REMANDS claim 3 to the Agency to undertake remedial action in accordance with this decision and the ORDER set forth below. We AFFIRM the Agency's determination of no discrimination or harassment with regard to the remaining claims. ORDER To the extent that it has not already done so, the Agency shall undertake the following actions: 1. Within sixty (60) calendar days after the date this decision becomes final, the Agency shall pay Complainant compensatory damages in the amount of $10,000. 2. Within one hundred twenty (120) calendar days after the date this decision becomes final, the Agency shall provide eight hours of in-person EEO training, with a specific emphasis on religious discrimination, harassment, and reprisal. 3. Within sixty (60) calendar days after the date this decision becomes final, the Agency shall post notices in accordance with the paragraph below. 4. Within sixty (60) calendar days after the date this decision becomes final, the Agency shall pay Complainant $10,980 in attorney's fees and costs. 5. A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below. POSTING ORDER (G1016) The Agency is ordered to post at its Office of Workers' Compensation Programs (OWCP) 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 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. 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 (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 (T0610) This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations 2-10-2017 __________________ 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 We further note that the record contains an Agency anti-harassment notice/policy that was ostensibly issued in 2012. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0720160020 15 0720160020