U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Charles E.,1 Complainant, v. Jeff B. Sessions, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 0720180006 Hearing No. 460-2015-00015X Agency No. BOP-2013-01133 DECISION Following its November 2, 2017, final order, the Agency filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) pursuant to 29 C.F.R. § 1614.403(a). On appeal, the Agency requests that the Commission affirm its rejection of an EEOC 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 a portion of the relief ordered by the AJ. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND Complainant, an employee with the Agency since 1995, worked at the Federal Correctional Complex in Beaumont, Texas. Complainant applied for the following two vacancies: (1) Assistant Trust Fund Supervisor (Vacancy Announcement No. SCR-2013-016) and (2) Trust Fund Specialist (Vacancy Announcement No. BMA-2013-0041). On September 17, 2013, Complainant was notified that he was not selected for either position. Believing that his non-selections were discriminatory, Complainant filed a formal complaint based on race (African American) and sex (male) on January 8, 2014.2 After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The AJ held a hearing on January 19, 2017, where Complainant and five witnesses testified. On September 29, 2017, the AJ issued a decision finding Complainant was subjected to racial discrimination when he was not selected for the ATFS position. The AJ also found Complainant was subjected to sex discrimination when he was not chosen for the TFS position. After determining that Complainant established a prima facie case, the AJ considered the Agency's proffered legitimate, non-discriminatory reasons. The Agency's primary reason for Complainant's non-selection was its determination that the Selectees ranked higher during the "reference check/vouchering process." Based on the evidence presented at the hearing, however, the AJ determined that the Agency's proffered reasons were "implausible and contradictory." The AJ found that, when compared to the Selectees, Complainant's work history with the Agency was "both varied and exemplary." The AJ further found that the "subjective vouchering system was actually a sham used to conceal discrimination in the selection process". Despite Complainant's "lackluster reference checks," the AJ considered Complainant's qualifications to be "plainly and demonstrably superior" to the Selectees. Therefore, the Agency's proffered reasons for not selecting Complainant were found to be a pretext for discrimination. The AJ awarded Complainant $90,000 in non-pecuniary damages, noting that Complainant suffered from difficulty sleeping, stress, self-doubt, loss of appetite, withdrawal from family, and loss of consortium with his fiancé. Additionally, the AJ awarded Complainant retroactive placement in either position or two years of front pay, back pay from the time of the non-selection, restoration of leave, and $39,781.54 in attorney's fees and costs. On November 2, 2017, the Agency issued a final order rejecting the AJ's finding of discrimination regarding the TFS position, as well as some of the remedies awarded. In particular, the Agency challenged the award of compensatory damages, the interest on damages, restoration of leave, and the amount of attorney's fees. Along with its final order, the Agency filed the instant appeal. Complainant seeks to have the AJ's decision upheld, but filed an appeal regarding the AJ's failure to award the differential lost in TSP contributions. ANALYSIS AND FINDINGS 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). Disparate Treatment - TFS Position Although the initial inquiry in a discrimination case usually focuses on whether the complainant has established a prima facie case, following this order of analysis is unnecessary when the agency has articulated a legitimate, nondiscriminatory reason for its actions. See Washington v. Dep't of the Navy, EEOC Petition No. 03900056 (May 31, 1990). In such cases, the inquiry shifts from whether the complainant has established a prima facie case to whether he has demonstrated by a preponderance of the evidence that the agency's reasons for its actions merely were a pretext for discrimination. Id.; see also U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714-717 (1983). As set forth above, the AJ determined that Complainant presented a prima facie case and that the Agency proffered legitimate, non-discriminatory reasons for not selecting Complainant for the two vacancies. On appeal, the Agency argues that the AJ erred by "substitut[ing] her judgment as to which candidate would be best . . . for the judgment of the Selecting Official." The Agency contends that, by purportedly "rejecting" the Agency's legitimate reason, the AJ improperly "placed the burden on the Agency to provide it did not discriminate (emphasis added)." The Commission disagrees. Rather, we find that the AJ properly considered the Agency's legitimate reason, and in light of the evidence presented at the hearing, concluded that it was pretext masking discriminatory animus. Findings of Fact In her "Findings of Fact", the AJ noted that during Complainant's more than twenty years with the Agency, he spent fifteen years as a Material Handler Supervisor and Procurement Property Specialist. Further, the AJ specifically observed that while a Materials Handler Supervisor, Complainant served as an ATFS when his supervisors were on military leave, sick leave, or on vacation. He was even temporarily promoted to the ATFS position, from April 2002 through April 2003. In contrast, while the ATFS Selectee had also been a Materials Handler Supervisor, the AJ stated that his only other experience was with the Texas Army National Guard. Following his selection, a Trust Funds Specialist (hereinafter "TFS-H") spoke with the Assistant Warden (hereinafter "AW") regarding the ATFS Selectee's apparent lack of supervisory skills. The "Findings of Fact" also included Complainant's supervisor's (hereinafter "ATFS-L") "shock" over Complainant's non-selection and ATFS Selectee's need to approach Complainant for assistance with his new job duties. While the Agency does not challenge the AJ's finding of discrimination regarding the ATFS vacancy, we find these factual findings are also relevant in considering the lower-graded TFS vacancy. Clearly, if Complainant was the plainly superior candidate for the ATFS vacancy, this would be especially true regarding the subordinate TFS position. Specific to the TFS position, the AJ observed that Complainant was authorized to perform TFS duties and performed these additional duties when a TFS was absent. In contrast, the TFS-Selectee's only experience was as a Materials Handler Supervisor. Pretext Instead of allegedly substituting her judgment for that of the Selecting Official, as argued on appeal by the Agency, the AJ simply found that the Agency's determination that TFS-Selectee was the best candidate was unsupported by the record and Agency witnesses lacked credibility. According to the AJ, the Agency "put forth little evidence to explain its selection process for the [TFS] position." The AJ noted that the Selecting Official drafted a statement regarding the selection a year after the non-selection occurred and admitted to not remembering the Selectee. While Complainant had experience performing the TFS job duties, and even had supervised TFSs when he was an ATFS, the Selectee lacked any such experience. The Agency appeared to rely upon the reference/vouching system in deciding not to select Complainant. The AJ concluded that this system was "highly subjective and inherently lacking in credibility." The checks were conducted over the phone and the individual providing the reference was unable to see or verify the resulting document for accuracy. The testimony provided by responsible management officials was found to be inconsistent, "pure conjecture," and lacking in credibility by the AJ. For example, in support of her conclusion, the AJ described the Warden's testimony regarding reference checks. The Warden initially testified to reviewing the reference checks of the Best Qualified list and then submitting a list of top four candidates to the Selecting Official. The Warden later testified he only reviewed the references of the top four candidates. At one point, the Warden stated he reviewed all the applications, only to later testify that the Assistant Warden provided him with a list of the top four candidates which he passed on to the Selecting Official. The AJ, who presided over the hearing and was in the best position to make credibility determinations, found the reference checking process to be "a sham used to conceal discrimination". The AJ found that the Agency's proffered reasons for choosing TSF-Selectee were pretext to mask unlawful discrimination. We find this determination to be supported by substantial evidence. Compensatory Damages When discrimination is found, the agency must provide the 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) To receive an award of compensatory damages, a complainant must demonstrate that he or 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 reconsideration 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. Compensatory damages may be awarded for the past pecuniary losses, future pecuniary losses, and non-pecuniary losses which are directly or proximately caused by the agency's discriminatory conduct. EEOC Notice No. 915.002 at 8. Objective evidence of compensatory damages can include statements from the complainant concerning his or her emotional pain or suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, injury to character or reputation, injury to credit standing, loss of health, and any other nonpecuniary losses that are incurred as a result of the discriminatory conduct. Statements from others, including family members, friends, health care providers, other counselors (including clergy) could address the outward manifestations or physical consequences of emotional distress, including sleeplessness, anxiety, stress, depression, marital strain, humiliation, emotional distress, loss of self-esteem, excessive fatigue, or a nervous breakdown. See Lawrence v. U.S. Postal Serv., EEOC Appeal No. 01952288 (Apr. 18, 1996), citing Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993). Evidence from a health care provider or other expert is not a mandatory prerequisite for recovery of compensatory damages for emotional harm. A complainant's own testimony, along with the circumstances of a particular case, can suffice to sustain his or her burden in this regard. On appeal, the Agency argues the AJ's award of $90,000 in non-pecuniary compensatory damages should be reduced to $25,000. In so doing, the Agency attempts to distinguish the instant facts from those in the cases cited by the AJ. According to the Agency, the cases which resulted in awards between $65,000 and $90,000 involved harm from a hostile work environment or a disability case, whereas here Complainant was only subjected to a single incident of non-selection. The Agency's argument, however, erroneously focuses upon the underlying facts, rather than the harm suffered by the Complainant. See Memphis Community School Dist. v. Stachura, 477 U.S. 299, 311-12 (1986). The purpose of compensatory damages is to remedy the injury to the Complainant. As noted in the AJ's decision, Complainant experienced stress, self-doubt, difficulty sleeping, a loss of appetite, withdrawal from family, and loss of consortium with his fiancé. He sought medical treatment for his sleep problems. We discern no basis to disturb the AJ's findings as her award of non-pecuniary damages is supported by the record and consistent with awards made in similar cases. See, Hartley v. Department of Agriculture, EEOC Request 05990563 (December 27, 2002) ($85,000 awarded for emotional and physical problems, including loss of self-esteem, worry and stress) citing Bahaudin v. Department of the Army, EEOC Appeal No. 01993594 (September 13, 2000) ($85,000 awarded where complainant produced evidence indicating that the agency's discriminatory actions caused him to, among other things, become very irritable; distant; wake up at night and make sudden jerking movements; not want to go to work; just lay in bed when he was not working; neglect his home duties; and not eat); Charles-Shannon v. United States Dep't of Agriculture, EEOC Appeal No. 01A24037 (Sept. 25, 2003)(award of $90,000 non-pecuniary compensatory damages found to be appropriate following non-selection, but reduced to reflect pre-existing condition); and, Bernard v. Department of Veterans Affairs, EEOC Appeal No. 01966861 (July 17, 1998) ($80,000 where complainant, through his own testimony and testimony of friends and family, presented evidence that he experienced depression, and insomnia). Interest on Compensatory Damages Section 717(d) of the Civil Rights Act of 1964, 42 U.S.C. 2000e 16(d), as amended by section 114(2) of the Civil Rights Act of 1991, Pub. L. 102-166 (Nov. 21, 1991), provides that "the same interest to compensate for delay in payment shall be available [to federal employees] as in cases involving nonpublic parties." By enacting the 1991 amendments, the Congress expressly waived the federal government's sovereign immunity from interest for delay in the payment of all monetary awards to victims of employment discrimination in the federal government to the same extent that any non-federal entity would be subject to. The Commission has previously held that a complainant is entitled to an award of interest where an agency delays in paying proven compensatory damages. See Chow v. Dep't. of the Army, EEOC Request No. 05991106 (February 13, 2001) (Agency adopted AJ's finding that Complainant was entitled to compensatory damages and said it would issue a decision on the matter within ninety days of receiving supporting evidence. Agency, however, did not act for more than two years); Compare, Vashi v. United States Postal Service, EEOC Appeal 07A50056 (December 5, 2007)(Complainant did not show Agency acted with willful disregard or willful delay in implementing Commission order, so not entitled to interest on damages award). We also note that the provisions at 29 C.F.R. § 1614.505(a)(3) pertaining to interim relief and the provision of interest for delayed payments do not apply to Complainant's claims, as he has not alleged discrimination in connection with a removal, separation, or suspension, but rather a failure to select him for a promotion. Consequently, in the instant matter, we find that Complainant is not entitled to interest on the award of non-pecuniary compensatory damages. Restoration of Leave In disputing the AJ's award of forty hours of annual leave and forty hours of sick leave, the Agency argues that there was insufficient documentation to support Complainant's assertion that he used this amount of leave as a result of the discriminatory non-selection. Further, the Agency notes that "ideally, this matter could be resolved by further developing the record," but due to the time limitation on issuing a final order it was prevented from doing so. The Commission agrees that a supplemental investigation regarding the amount of leave used by Complainant during the relevant time is appropriate. TSP Complainant argues in his appeal that "make whole" relief encompassed by his retroactive promotion to the ATFS position includes the payment of any TSP differential. The Commission agrees. In granting Complainant "retroactive, no-discriminatory placement in the . . . position", the AJ ordered the Agency to also provide Complainant step increases and "any and all benefits" he would have received if he had been in the position. Similarly, in awarding back pay, the Agency was ordered to determine the appropriate amount and "other benefits" due to Complainant from the date of the non-selection to the date the decision becomes final. With respect to TSP contributions, the Commission has held that "make whole" relief requires the Agency to make retroactive tax-deferred contributions to Complainant's TSP account during the back pay period. Howgate v. U.S.Postal Service, EEOC Petition No. 04990031 (February 4, 2000) (citing Fiene v. U.S. Postal Service, EEOC Petition No. 04920009 (September 3, 1992)). The Commission has also held that, to the extent an employee would have received government contributions to a retirement fund as a component of his salary, he is entitled to have his retirement benefits adjusted as part of his back pay award, including receiving earnings which the account would have accrued during the relevant period. Id. (citing Robinson v. Dep't of the Treasury, EEOC Petition No. 04980006 (July 2, 1998); Lee v. Dep't of the Army, EEOC Petition No. 04980020 (October 1, 1998)). Therefore, in calculating the appropriate amount of back pay owed to Complainant, the Agency shall subtract the percentage of TSP employee contribution. It shall also make the required 5% contribution to Complainant's TSP account. Moreover, the Agency shall calculate and pay the earnings that Complainant's TSP account would have accrued but for the discriminatory non-selection. See Yovan v. Dep't of Homeland Security, EEOC Appeal No. 0120083601 (October 20, 2010). Attorney's Fees and Costs An agency is required to award attorney's fees for the successful processing of an EEO complaint in accordance with existing case law and regulatory standards. 29 C.F.R. § 1614.501(e); Bernard v. Dep't of Veterans Affairs, EEOC Appeal No. 01966861 (July 17, 1998). Attorney's fees are computed by determining the lodestar, i.e., the number of hours reasonably expended multiplied by a reasonable hourly rate. 29 C.F.R. § 16l4.501(e)(2)(ii)(B); EEO Management Directive for 29 C.F.R. Part 1614 (MD-110) at 11-5 (citing Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). All hours reasonably spent in processing the complaint are compensable, and the number of hours should not include excessive, redundant or otherwise unnecessary hours. MD-110 al 11-5 (citing Hensley, 461 U.S. at 434; and Bernard, EEOC Appeal No. 01966861. A reasonable hourly rate is based on prevailing market rates in the relevant community for attorneys of similar experience in similar cases. MD-110 at 11-6 (citing Cooley v. Dep't of Veterans Affairs, EEOC Request No. 05960748 (July 30, 1998)). The First Circuit in Coutin v. Young & Rubicam, 124 F.3d 331, 337 (1st Cir. 1997), a case cited by EEOC Management Directive (EEO MD-110), provides guidance as to the appellate standard of review for an AJ's determination of attorney's fees: We review fee awards deferentially, according substantial respect to the trial court's informed discretion. See Brewster v. Dukakis, 3 F.3d 488, 492 (1st Cir. 1993). We will disturb such an award only for mistake of law or abuse of discretion. See United States v. Metropolitan Dist. Comm'n, 847 F.2d 12, 14 (1st Cir. 1988). In this regard, an abuse of discretion occurs "when a material factor deserving significant weight is ignored, when an improper factor is relied upon, or when all proper and no improper factors are assessed, but the court makes a serious mistake in weighing them." Foster v. Mydas Assocs., Inc., 943 F.2d 139, 143 (1st Cir. 1991) [internal quotation marks and citations omitted]. 124 F.3d at 336. Therefore, in this appeal, the Commission will determine whether the AJ erred as a matter of law or abused his discretion. See, e.g., Meachum v. Social Security Admin., EEOC Appeal No. 0720120003 (Sept. 9, 2013). In the instant case, the Agency does not challenge the hourly rate based on the Laffey Matrix presented by Complainant's attorney and relied upon by the AJ. The Agency does dispute some of the hours expended3 and costs incurred, particularly related to travel. The Agency contends that the AJ erred in awarding fees for the time spent on travel at the attorney's full hourly rate. We agree. Commission decisions have found that a counsel's travel time is not compensable at a counsel's full reasonable hourly rate, but is instead compensated at half the counsel's reasonable hourly rate. See Black v. Department of the Army, EEOC, Request No. 05960390 (December 8, 1998), citing Logan v. Department of the Army, EEOC Appeal No. 01950602 (June 20, 1997). Here, Complainant's attorney spent nine hours traveling to and from the hearing in Texas. Therefore, the AJ's award of attorney's fees shall be reduced by 4.5 hours, to reflect an adjustment of 50% in the hourly rate for the time spent traveling ($516/hr x 4.5 = $2,322.00). With respect to costs, the Agency argues that EEOC Regulations do not provide for the per diems ($75/day x 6 days = $450) and housekeeping tip ($10) sought by Complainant's attorney. Citing Mathis v. Action, EEOC Appeal No. 01901575 (April 2, 1990), Complainant counters that "per diem costs for meals can be awarded by the Commission". However, we note that the precise issue of per diem reimbursement was not presented in Mathis. The Commission did find the Agency in that case to be "rather conservative" in determining travel expenses, and concluded the complainant was entitled to air fare, taxi fares and tips. See id. So, while Complainant's attorney may be able to recover the cost of out-of-picket expenses, such as meals and tips, she cannot do so by simply seeking the daily per diem allowance provided by her employer. We have consistently held that fee applicants who wish to be reimbursed for incurred costs must submit adequate documentation in support of the expenses incurred, such as copies of telephone bills or receipts. See Davis v. U.S. Postal Serv., EEOC Appeal No. 0120053186 (Apr. 24, 2007); Poquiz v. Dep't of Homeland Security, EEOC Appeal No. 0720050095 (Apr. 10, 2008). In this case, Complainant's attorney acknowledges that no such receipts were provided. Therefore, we reduce the costs awarded by $450.00. Training In her September 29, 2017, the AJ ordered the Agency to "require training for all current Wardens at the Federal Correctional Complex in Beaumont, Texas regarding the provisions of Title VII." The Agency argues that this broad order is not justified by the record, and instead only Warden [V] and AW should be provided such training. The Commission has addressed the breadth of training ordered in previous decisions. In a prior appeal also concerning the Bureau of Prisons, the Agency argued it was an abuse of discretion for the AJ to order training for "every supervisory and managerial staff member", rather than simply the Warden who was responsible for the discriminatory actions. See Burton v. Dep't of Justice EEOC Appeal No. 0720090046 (June 9, 2011). The Commission found no error nor abuse of discretion by the AJ. See id; see also, Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0720140013 (June 13, 2014); Cairo v. Dep't of Justice, EEOC Appeal No. 0720100023 (Jan. 13, 2011). Here, the AJ's order does not encompass "all managerial staff" or "all employees," but more narrowly "all current Wardens". It was a Warden and AW, both positions of leadership, that were found to have engaged in unlawful discrimination. Therefore, we find that the AJ properly exercised her discretion in ordering all current Wardens at the Beaumont facility to receive training. The purpose of such training is not to punish individuals for past discriminatory conduct, but rather, to educate employees concerning the requirements of the law in order to avoid future violations. Textor v. Department of Veterans Affairs, Appeal No. 0720060047 (2008). CONCLUSION Accordingly, we AFFIRM the AJ's findings of discrimination and MODIFY the award of relief. The matter is REMANDED to the Agency in accordance with the Order below. ORDER Within sixty (60) calendar days, to the extent it has not already done so, the Agency shall take the following remedial actions: (1) Provide Complainant with retroactive placement in his choice of the Assistant Trust Fund Supervisor position or the Trust Fund Specialist position, effective September 17, 2013, at the grade and step he would be in had he been originally selected. (2) If the positions (or substantially equivalent positions) no longer exist, or Complainant rejects placement, the Agency shall determine the appropriate amount of front pay and other benefits due Complainant for the period beginning on the date back pay ends (see paragraph 3 below) and ending two years afterwards. If there is a dispute regarding the exact amount of front pay and/or benefits, the Agency shall issue a check to Complainant for the undisputed amount within thirty (30) days of the date the Agency determines the amount it believes to be due. Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer at the Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. (3) Determine the appropriate amount of back pay, with interest, and other benefits, including but not limited to TSP contributions, due Complainant, pursuant to 29 C.F.R. § 1614.501, from September 17, 2013, to the date Complainant is placed in one of the positions at issue, or rejects the placement. The Agency shall provide Complainant with a detailed statement of its calculations and payments made on his TSP account. Specifically, the Agency shall clearly document its calculations for all Agency TSP contributions and for lost earnings on Complainant's TSP account. Moreover, the Agency shall clearly document all deductions made from Complainant's back pay award consisting of employee TSP contributions, specifically indicating how it calculated these amounts. The Agency shall provide evidence showing whether it has reimbursed the lost earnings to Complainant's account. Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to Complainant for the undisputed amount within thirty (30) days of the date the Agency determines the amount it believes to be due. Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer at the Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. (4) Pay Complainant non-pecuniary compensatory damages in the amount of $90,000. (5) Pay Complainant $37,009.54 in attorney's fees and costs. (6) Conduct a supplemental investigation as to Complainant's claim of lost leave due to the discriminatory non-selections. Following the investigation, the Agency shall reimburse the lost leave and issue Complainant a decision explaining its analysis of his entitlement to reimbursement of leave. (7) Provide training to all Wardens at the Federal Correctional Complex in Beaumont, Texas. Such training shall focus on their responsibilities and obligations under Title VII, and be at least four (4) hours in length. (8) Consider taking appropriate disciplinary action against the responsible management officials. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer, including whether or not it decided to take disciplinary action, the reasons for its action, and what action was taken. (9) 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 the corrective action has been implemented as ordered. POSTING ORDER (G0617) The Agency is ordered to post at its Federal Correctional Complex in Beaumont, Texas, 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)), 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 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 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 July 19, 2018 __________________ 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 also raised the bases of age and disability, but later withdrew these claims. 3 In "Memorandum of Law in Opposition to Administrative Judge's Decision", issued after the AJ's decision but prior to the Agency's Final Order, the Bureau of Prisons (BOP) argued that Complainant inappropriately requested fees for tasks it believed to be "clerical" in nature. However, in its Final order the Department of Justice considered the entries to "reasonably appear to be case strategy discussions with [C]omplainant and are not clerical." Therefore, we shall not review those entries. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0720180006 15 0720180006