Ross H.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

May 17, 2018

0720180001 (E.E.O.C. May. 17, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Ross H.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.

Appeal No. 0720180001

Hearing No. 430-2016-00004X

Agency No. 4K-230-0023-15

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts the Agency’s
timely appeal following its September 21, 2017 final order. On appeal, the Agency requests that
the Commission affirm its rejection of the EEOC 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. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Customer Service
Supervisor, EAS-17, at the Agency’s Debree Station in Norfolk, Virginia. Complainant claimed
that he had 27 years of experience at the Agency, including 12 years in management and three
and a half years as an EAS-20 and EAS-21 Acting Manager. On October 2, 2014, Complainant
applied for an EAS-18 Customer Services Manager position in Norfolk, Virginia under Job
Posting No. 80172781. A Review Committee reviewed the applications and made an initial
decision regarding who would be interviewed. The Review Committee did not refer
Complainant for an interview, and he was not selected for the position.

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.
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On August 7, 2014, Complainant applied for an EAS-20 Customer Services Manager position in
Norfolk under Job Posting No. 80414650. Management did not utilize a Review Committee for
this selection. Complainant was interviewed for the position by the Selecting Official. The
Selecting Official ultimately did not select Complainant for the position and he was notified of
his non-selection on November 4, 2014.

On February 25, 2015, Complainant applied for a Postmaster position in Portsmouth, Virginia
under Job Posting No. 84283383. Management utilized a Review Committee to review
applications. Complainant was not referred for an interview and ultimately was not selected for
the position.

On February 2, 2015, Complainant filed a formal complaint alleging that the Agency
discriminated against him on the bases of race (Caucasian), sex (male), age (53), and in reprisal
for prior protected EEO activity when:

1. On October 2, 2014, he was not selected for the Manager Customer Services, EAS-
18, position located in Norfolk, Virginia;

2. On October 2, 2014, he was not selected for the Manager Customer Services, EAS-
20, position located in Norfolk, Virginia; and,

3. On February 25, 2015, he was not selected for the Postmaster, EAS-22, position
located in Portsmouth, Virginia.2

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 EEOC
Administrative Judge (AJ). Complainant timely requested a hearing.

On October 1, 2015, the AJ assigned to the matter issued an Acknowledgment Order ordering
the Agency to provide her and the Complainant a copy of the ROI within 15 days of the
Agency’s receipt of the Order, if it had not already done so, and scheduling an Initial Conference
for January 7, 2016. On October 23, 2015, Complainant submitted a Motion for Sanctions
claiming that the Agency had failed to timely develop a complete and impartial record.
Complainant noted that the Agency failed to include in the ROI application materials and
qualifications of the candidates selected for two positions at issue, failed to identify the candidate
selected for a third position, and failed to include interview notes for all three positions.
Complainant requested default judgment in his favor as a sanction.

2 The Agency dismissed numerous additional claims as untimely raised pursuant to 29 C.F.R.
§ 1614.107(a)(2). Complainant raised no challenges to the dismissal of these claims before the
AJ or on appeal; therefore, the Commission will exercise its discretion and review only those
matters specifically raised on appeal.
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On November 5, 2015, the Agency responded, acknowledging that the ROI did not include the
documents and information Complainant cited, but claimed that the ROI included “pertinent
information related to the selection.” For example, the Agency argued that the ROI contained
statements from selection officials, applicant rankings, and vacancy announcements. The
Agency further claimed that Complainant was not prejudiced or denied justice by the missing
documentation. In addition, the Agency argued that other omissions could be cured during
discovery.

On November 16, 2015, Complainant responded by stating that discovery was not a replacement
for the Agency’s obligation to complete a full investigation and that the Agency’s inadequate
investigation would cause him to incur costs. On November 17, 2015, Complainant requested a
protective order to prevent the Agency from conducting a supplemental investigation which he
claimed constituted a “thinly-veiled attempt to avoid sanctions.” The Agency subsequently
suspended the supplemental investigation pending a ruling from the AJ. Complainant withdrew
the protective order motion.

On January 21, 2016, the AJ issued a Notice of Intent to Grant Complainant’s Motion for
Sanctions and Notice of Intent to Issue a Default Judgment. Therein, the AJ determined that the
Agency had failed to provide any persuasive reason for its failure to include basic information
regarding its selections. Further, the AJ found that it was disturbing that the Agency would
suggest that since Complainant was aware of the identity of the third selectee, it was forgivable
that the Agency failed to identify the selectee in the ROI. Additionally, the AJ noted that it was
equally disturbing that the Agency would suggest that the proper resolution of an inadequate
investigation was the discovery process – clearly at the cost of Complainant – which was a
blatant violation of the Commission’s regulations. Thus, the AJ found that a sanction in the form
of default judgment against the Agency was appropriate in the instant case. The AJ ordered the
Agency to discontinue any supplemental investigations as it violated the Commission’s
regulations, would taint the EEO process, and was mounted as an attempt to backtrack and
remedy a matter currently under review by the AJ without prior approval. The AJ provided the
parties until February 11, 2016 to submit comments regarding the Notice. On February 10,
2016, the Agency opposed the Notice.

On December 20, 2016, the AJ issued an Order Scheduling Hearing on Damages finding that
default judgment was appropriate and that Complainant had established a prima facie case of
discrimination. On June 6 and 7, 2017, the AJ held a damages hearing. On August 15, 2017, the
AJ issued an Order Granting Default Judgment and Order on Relief. In the decision, the AJ first
determined that Complainant failed to provide supportive testimony and evidence regarding out-
of-pocket expenses. Therefore, the AJ found that Complainant had not established an
entitlement to pecuniary damages. Next, the AJ determined that Complainant’s testimony
regarding non-pecuniary damages was credible. The AJ noted that Complainant provided
credible testimony regarding his depressed outlook on life, avoidance of socialization, and
feelings of anger and despair. Further, the AJ found that Complainant’s testimony was
believable about the effects of his depressed mood on his family and his inability to socialize and
enjoy life such as he had before the Agency’s actions. As a result, the AJ awarded Complainant
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$25,000.00 in non-pecuniary compensatory damages. The AJ further awarded Complainant
placement in a Manager, Customer Services, EAS-20, position in the Norfolk, Virginia area or a
mutually agreed-upon position for which Complainant was qualified. In addition, the AJ ordered
the Agency to provide Complainant back pay with interest with other benefits including step
increases from November 4, 2014 to the date of the AJ’s decision. Further, the AJ ordered the
Agency to restore all sick and annual leave taken during the period in question, pay $91,328.30
in attorneys’ fees and $3,756.11 in costs. Finally, the AJ ordered the Agency to provide training
regarding the EEO process to the affected Agency departments.

On September 21, 2017, the Agency issued a final order rejecting the AJ’s default judgment
decision and the relief ordered. Simultaneously, the Agency filed the instant appeal.

CONTENTIONS ON APPEAL

On appeal, the Agency contends that the AJ erred by granting default judgment in favor of
Complainant. The Agency argues that it was not put on notice for such a sanction because there
was no pending order which the Agency failed to follow and the AJ did not give the Agency
opportunity to cure any alleged defects. Further, the Agency claims that the AJ abused her
discretion in determining default judgment was a proper sanction. The Agency argues that the
AJ leapt to the most severe available sanction for its failure to provide specific documents in its
ROI, which contained over 600 pages of documents. The Agency states that supplementing the
investigation would have been relatively simple and issuing a default decision after not allowing
any real opportunity for the Agency to cure the defects does not protect the integrity of the EEO
process. Further, the Agency claims that the AJ erred in not allowing the Agency sufficient time
to respond to Complainant’s fee petition. Next, the Agency argues that the AJ awarded
excessive non-pecuniary compensatory damages. The Agency contends that Complainant and
his wife testified that much of Complainant’s stress stemmed from financial problems related to
his children in college and not from any alleged discriminatory act by the Agency. In addition,
the Agency argues that the AJ erred in awarding Complainant full attorneys’ fees and costs. The
Agency claims that there was evidence of duplication of work, non-legal and clerical work, and
other non-recoverable fees and costs. Thus, the Agency requests that the Commission reduce the
awarded attorneys’ fees by 65 percent. Accordingly, the Agency requests that the Commission
affirm its final order and remand this matter for a hearing on liability.

In response, Complainant contends that the AJ’s issuance of default judgment as a sanction was
not an abuse of discretion. Complainant notes that the Agency had ample notice and several
opportunities to show good cause before the AJ issued default judgment. More specifically,
Complainant points out that he submitted letters to the Agency and the EEO investigator in
which he identified specific documents that should have been included in the ROI. In addition,
Complainant adds that the Agency was on notice on November 5, 2015, that the AJ believed that
Complainant’s Motion for Sanctions “appeared to have merit” and again on January 21, 2016,
where the AJ informed the parties that they would have until February 11, 2016, to submit
comments regarding her intent to issue default judgment. Complainant argues that given the
egregious omissions from the record, default judgment was an appropriate sanction.
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Complainant contends that there is substantial record evidence supporting the AJ’s award of
relief and attorneys’ fees. Complainant notes that the Agency is not required to respond to a fee
petition and the AJ did not commit any procedural errors in her decision. With respect to the
attorneys’ fees and costs, Complainant argues that the fee petition reflects work performed by a
small staff where other staff members stepped in at various stages to ensure the appropriate legal
services were provided and to keep costs low. Complainant asserts that his attorneys’ firm
carefully reviewed its billing entries and classified as “no charge” instances where it was
appropriate or where services were duplicative. Accordingly, Complainant requests that the
Commission reverse the final order and order the Agency to implement the AJ’s decision and
relief ordered.

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 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. See 29 C.F.R.
§ 1614.405(a).

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 for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9, at § VI.B.
(Aug. 5, 2015).

ANALYSIS AND FINDINGS

The AJ’s Imposition of Sanctions

The Commission notes that Commission regulations and precedent provide AJs with broad
discretion in matters relating to the conduct of a hearing, including the authority to issue
appropriate sanctions, including a default judgment. See 29 C.F.R. § 1614.109(e); EEO MD-110,
at Ch. 7 (Aug. 5, 2015); Matheny v. Dep't of Justice, EEOC Request No. 05A30373 (Apr. 21,
2005). An AJ must distinguish between conduct that does not warrant the imposition of a
sanction and conduct which does.

Here, the AJ sanctioned the Agency for its failure to conduct a complete and thorough
investigation into Complainant’s complaint. Specifically, the record was lacking application
materials or qualifications of the selectees for the positions at issue in claims (1) and (2), the
identity of the selectee for the position at issue in claim (3), and interview notes for any of the
positions. At a minimum, a record for a non-selection case such as this should include the
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identities of applicants who made the best qualified list or were selected, application materials
and qualifications of those who made the best qualified list or were selected, statements from all
recommending and/or selecting officials, and interview panel notes. Here, the record was clearly
deficient as basic evidence related to the selections and the selection processes was not included.
These omissions deprived Complainant of any realistic opportunity to demonstrate that his
qualifications were superior to those of the selectees or otherwise prove his case.

EEOC Regulation 29 C.F.R. § 1614.108(b) requires, inter alia, that the Agency develop an
impartial and appropriate factual record upon which to make findings on the claims raised in the
complaint. One purpose of an investigation is to gather facts upon which a reasonable fact finder
may draw conclusions as to whether a violation of the discrimination statutes has occurred. Id.;
EEO MD-110, at Ch. 6, § IV.B. An investigation must include “a thorough review of the
circumstances under which the alleged discrimination occurred; the treatment of members of the
Complainant’s group as compared with the treatment of similarly situated employees...and any
policies and/or practices that may constitute or appear to constitute discrimination, even though
they have not been expressly cited by the complainant.” Id. at § IV.C. Also, an investigator
must identify and obtain “all relevant evidence from all sources regardless of how it may affect
the outcome.” Id. at § VI.D.

The Agency has provided no explanation for its failure to appropriately investigate
Complainant’s claims. The Agency claimed that Complainant was not prejudiced by these
omissions and that discovery was available to supplement the record. The Commission stresses
that the purpose of discovery is to perfect the record in the hearing process, but it is not a
substitute for an appropriate investigation. Moreover, the Commission notes that every
complainant does not choose the option of requesting a hearing. The regulations found at 29
C.F.R. § 1614.108(b) squarely place the responsibility for an accurate, complete investigation,
completed within 180 days, upon the Agency. Complainant requested twice during the
investigation that the Agency include the specific information and documents that were
subsequently omitted. Based on the Agency’s failure to develop a complete factual record, the
Commission finds that the AJ properly determined that sanctions were appropriate.

Determination of Sanction

The Commission’s sanctions serve a dual purpose. On the one hand, they aim to deter the
underlying conduct of the non-complying party and prevent similar misconduct in the future.
Barbour v. U.S. Postal Serv., EEOC 07A30133 (June 16, 2005). On the other hand, they are
corrective and provide equitable remedies to the opposing party. Given these dual purposes,
sanctions must be tailored to each situation by applying the least severe sanction necessary to
respond to a party’s failure to show good cause for its actions and to equitably remedy the
opposing party. Royal v. Dep't of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25,
2009). Several factors are considered in tailoring a sanction and determining if a particular
sanction is warranted: (1) the extent and nature of the non-compliance, and the justification
presented by the non-complying party; (2) the prejudicial effect of the non-compliance on the
opposing party; (3) the consequences resulting from the delay in justice; and (4) the effect on the
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integrity of the EEO process. Gray v. Dep't of Def., EEOC Appeal No. 07A50030 (Mar. 1,
2007). If a lesser sanction would suffice to deter the conduct and to equitably remedy the
opposing party, it may constitute an abuse of discretion to impose a harsher sanction. See Hale
v. Dep’t of Justice, EEOC Appeal No. 01A03341 (Dec. 8, 2000).

The Commission concludes that the AJ’s sanction of default judgment in favor of Complainant
was not an abuse of discretion. Default judgment is an appropriate sanction for the Agency’s
egregious failure to conduct an appropriate investigation. In other appeals of default judgments
issued by AJs for failure to comply with the requirements of the 29 C.F.R. Part 1614 process, the
Commission has affirmed the default judgments, in the interest of protecting the integrity of the
EEO process. See Complainant v. Dep't of the Air Force, EEOC Appeal No. 0720090009 (June
5, 2015); Royal v. Dep't of Veterans Affairs, supra; Reading v. Dep't of Veterans Affairs, EEOC
Appeal No. 07A40125 (Oct. 12, 2006); Lomax v. Dep't of Veterans Affairs, EEOC Appeal No.
0720070039 (Oct. 2, 2007), req. for recon. den., EEOC Request No. 0520080115 (Dec. 26,
2007); Elston v. Dep't of Transp., EEOC Appeal No. 07A50019 (Oct. 18, 2005), req. for recon.
den., EEOC Request No. 05A60283 (Jan. 5, 2006); Rhinesmith v. Dep't of the Treasury, EEOC
Appeal No. 07A10103 (Jan. 28, 2003), req. for recon. den., EEOC Request No. 05A30509 (May
13, 2003).

In addition, the Agency argued that the AJ erred by not giving it notice of the potential for
sanctions. The Commission is not persuaded that the Agency was given inadequate notice that
sanctions may be imposed. Complainant submitted a motion seeking sanctions on October 23,
2015. The Agency responded to that motion on November 5, 2015. The record indicates that the
AJ informed the parties that Complainant’s motion “appeared to have merit” on January 7, 2016.
On January 21, 2016, the AJ issued a Notice of Intent to Grant Complainant’s Motion for
Sanctions and Notice of Intent to Issue a Default Judgment. The AJ provided the parties until
February 18, 2016 to respond to the Notice. The Agency responded to the Notice on February
10, 2016. Thus, the Commission finds that the Agency was given adequate notice that sanctions,
including default judgment, could be imposed.

Entitlement to Relief

After deciding to issue a default judgment for a complainant, the Commission must determine if
there is evidence that establishes the complainant’s right to relief. One way to show a right to
relief is to establish the elements of a prima facie case. See Royal, EEOC Request No.
0520080052; see also Matheny v. Dep't of Justice, EEOC Request No. 05A30373 (April 21,
2005).

In order to prevail on a disparate treatment claim, 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).
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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.

Here, the record reveals that Complainant has established a prima facie case of discrimination
and reprisal. The record shows that Complainant applied for and was found qualified, but
ultimately was not selected for the three positions at issue. Furthermore, the selectees for the
positions at issue in claims (1) and (2) were African-American females. Their ages and protected
EEO activity were not known. With respect to the position at issue in claim (3), the Agency’s
deficient investigation failed to identify the third selectee; however, Complainant indicated that
he learned that the selectee was an African-American male. Complainant did not know the third
selectee’s age or prior protected EEO activity. Accordingly, the Commission agrees with the AJ
that Complainant has established a prima facie case of discrimination based on race and sex with
respect to claims (1) and (2) and based on race with regard to claim (3).

REMEDIES

When discrimination is found, the Agency must provide the complainant with a remedy that
constitutes full, make-whole relief to restore him as nearly as possible to the position he 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, 119 S.Ct. 1906
(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).

The Commission notes that the Agency only challenges the AJ’s award of non-pecuniary
compensatory damages and attorneys’ fees and costs. The Commission will exercise its
discretion and review only those issues specifically raised on appeal.

Non-Pecuniary Damages

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
Enforcement Guidance: Compensatory and Punitive Damages Available under § 102 of the Civil
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Rights Act of 1991, 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 be
“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).

Evidence from a health care provider or other expert is not a mandatory prerequisite for recovery
of compensatory damages for emotional harm. 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)). Objective evidence of compensatory damages can include statements
from Complainant concerning his 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 non-pecuniary losses that are incurred as a result
of the discriminatory conduct. Id.

Here, the AJ awarded Complainant $25,000.00 in non-pecuniary compensatory damages, finding
that Complainant presented credible testimony establishing that he experienced stress,
sleeplessness, chest pains, hopelessness, loss of outgoingness, anger, a depressed outlook on life,
and aggravation of teeth grinding because of the Agency’s discriminatory non-selections. The
Agency argued that Complainant and his wife testified that much of Complainant’s stress
stemmed from other financial problems unrelated to its actions and that damages in the range of
$5,000.00 to $7,000.00 would be more appropriate.

Upon review of the record, the Commission is unpersuaded by the Agency’s appellate
arguments. Indeed, the Commission finds that an award of $30,000.00 is more appropriate under
the circumstances. The Commission notes that the award is comparable to awards in prior
Commission decisions. See Dallas D. v. U.S. Postal Serv., EEOC Appeal No. 0120150319
(Mar. 24, 2017) ($30,000 awarded where complainant experienced emotional and mental
distress, exacerbation of his pre-existing conditions, anxiety, and isolation from his family and
social gatherings); Complainant v. Dep’t of Agric., EEOC Appeal No. 0120131896 (May 22,
2014), req. for recon. denied, EEOC Request No. 0520140443 (Feb. 6, 2015) ($30,000 awarded
where complainant’s non-selection resulted in interference with family life, loss of enjoyment of
life, decreased, and increased blood pressure); Frazier v. Dep't of Agric., EEOC Appeal No.
0120100064 (Mar. 31, 2011) ($25,000 awarded where complainant’s non-selection resulted in
sleeplessness, depression, familial withdrawal, loss of interest, and hospitalization after an
apparent heart attack). 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
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Serv., EEOC Appeal No. 01972555 (Apr. 15, 1999) (citing Cygnar v. City of Chicago, 865 F. 2d
827, 848 (7th Cir. 1989)).

Attorneys’ Fees and Costs

The Commission initially notes that the Agency argues that the Commission should reverse the
AJ’s decision awarding attorney’s fees to Complainant because the AJ issued a decision before it
had an opportunity to respond to Complainant’s submitted fee petition. Commission regulations
provide that the Agency may respond to a complainant’s petition for attorney’s fees, but there is
no mandatory requirement that the agency should be able to state its objection before an award is
calculated. 29 C.F.R. § 1614.501(e)(2). Accordingly, the Commission finds that the AJ did not
commit any procedural error by issuing a decision awarding attorneys’ fees and costs to
Complainant prior to the Agency’s response.

Attorneys’ fees will be computed by determining the “lodestar”: the number of hours reasonably
expended multiplied by a reasonable hourly rate. EEO MD-110, at Ch. 11, § VI.F.1. The
number of hours should not include excessive, redundant, or otherwise unnecessary hours. Id. A
reasonable hourly rate is based on “prevailing market rates in the relevant community” for
attorneys of similar experience in similar cases. Id. The hours spent on unsuccessful claims
should be excluded in considering the amount of a reasonable fee only where the unsuccessful
claims are distinct in all respects from the successful claims. EEO MD-110, Ch. 11, § VI.F.1.
Successful and unsuccessful claims are not fractionable when they are closely intertwined and
involve the same common core of facts. See Mannon v. U.S. Postal Serv., EEOC Appeal No.
0720070074 (Apr. 4, 2012).

The Commission and courts generally use the Laffey Matrix to determine the hourly rate for
Washington, D.C. area attorneys. Laffey v. Northwest Airlines Inc., 572 F. Supp. 354 (D.D.C.
1983), rev'd in part, 746 F.2d 4 (D.C. Cir. 1984). The Laffey matrix is a chart compiled yearly
by the United States Attorney’s Office in the District of Columbia. It provides a schedule of
hourly rates prevailing in the Washington, D.C. area in each year, going back to 1981, for
attorneys at various levels of experience. Piper v. U.S. Dep't of Justice, 339 F. Supp. 2d 13, 24
n. 8 (D.D.C. 2004).

A reasonable fee award may be assessed in light of factors such as: (1) the time required (versus
time expended) to complete the legal work: (2) novelty or difficulty of the issues: (3) the
requisite skill to properly handle the case; (4) the relief sought and results obtained: and (5) the
nature and length of the attorney-client relationship. See Cerny v. Dep't of the Army, EEOC
Request No. 05930899 (Oct. 19, 1994).

The AJ granted Complainant’s full request of $91,328.30 in attorneys’ fees and $3,756.11 in
costs. The Agency challenges the AJ’s award of attorneys’ fees as excessive and based on
duplicative work or unrecoverable fees. First, the Agency argued that 21 different individuals
were listed in the fee petition as performing work on Complainant’s case which resulted in
double billing. Complainant’s attorney explained that other staff stepped in to assist with matters
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when attorneys, paralegals, and other support staff were unavailable and to keep the case
moving. Further, Complainant’s attorney stated that the firm carefully reviewed its billing
entries and classified as “no charge” numerous instances such as when an individual attended a
meeting, deposition or hearing and such attendance was for educational purposes; when services
provided were primarily administrative in nature; when services performed took longer than
what was expected; and for services that were duplicative. The Agency identified one example
of what it claimed to be duplicative billing, but claimed the fee petition contained multiple
additional instances of double-billed time. The Commission finds that substantial record
evidence supports the AJ’s finding that Complainant’s requested attorneys’ fees were neither
excessive nor based on duplicative work. The record reveals that what the Agency characterized
as a duplication of effort is nothing more than consultations between attorneys, which occurs
regularly in legal practice.

Next, the Agency claimed that Complainant’s attorneys billed for multiple hours of clerical work
performed by paralegals. The Agency points to an example where time was charged for serving
documents on the Agency, calculating deadlines, and scheduling meetings. While
Complainant’s attorney claims that it reviewed its billing entries to eliminate matters that were
primarily administrative, the Commission has identified a total of 8.2 hours of work performed
by paralegal and support staff that appeared to be clerical in nature. Accordingly, the
Commission finds that the award of attorney’s fees should be reduced by $1,287.40 for these
non-compensable tasks.

Finally, the Agency challenges the AJ’s award of costs that included reimbursement for travel
expenses. Included in the travel expenses were charges for airfare and lodging for
Complainant’s attorney to fly from Atlanta, Georgia to her office in Silver Spring, Maryland.
Complainant’s attorney argues that such expenses are compensable and that an attorney is
entitled to full reimbursement of fees if the travel was necessary. Furthermore, Complainant’s
attorney explains that she was the lead attorney in this case and that even though she moved to
Georgia while the matter was pending, it was reasonable for her to stay on the case given the
relationship she had developed with Complainant and the additional fees that would have
resulted while a new attorney learned the record. The record shows that Complainant’s attorney
billed for travel to depositions and the hearing and submitted supporting documentary evidence.
Complainant’s attorney noted that she exercised billing judgment by listing half of the travel
time as “No Charge.” The Commission finds that this comports with the Commission’s position
that an award of attorney’s fees for time spent traveling should be compensable at a reduced rate
of one half the attorney’s normal hourly rate. See Black v. Dep't of the Army, EEOC Appeal
No. 01943642 (Feb. 27, 1996). Accordingly, the Commission finds that substantial record
evidence supports the AJ’s finding that these charges are properly compensable.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted on
appeal, the Commission REVERSES the Agency’s final order finding no discrimination and
rejecting the AJ’s order of relief.
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The Commission MODIFIES the AJ’s award of remedies. The matter is REMANDED to the
Agency for remedial action in accordance with this decision and the Order below.

ORDER

The Agency is ordered to take the following remedial action to the extent that it has not already
done so:

1. Within sixty (60) calendar days of the date this decision is issued, the Agency shall
place Complainant in the position of Manager Customer Service, EAS-20, in the
Norfolk, Virginia area or a mutually agreed-to position for which Complainant is
qualified, with the effective date of November 4, 2014;

2. Within sixty (60) calendar days of the date this decision is issued, the Agency shall
determine the appropriate amount of back pay, with interest, and other benefits due
Complainant, pursuant to 29 C.F.R. § 1614.501. 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 60 calendar days of the date
the Agency determines the amount it believes to be due. Complainant may petition
for clarification or enforcement of the amount in dispute. The petition for
clarification or enforcement must be filed with the Compliance Officer, at the address
referenced in the statement entitled “Implementation of the Commission's Decision.”

3. Within sixty (60) calendar days of the date this decision is issued, the Agency shall
pay Complainant $30,000.00 in non-pecuniary compensatory damages.

4. Within sixty (60) calendar days of the date this decision is issued, the Agency shall
calculate and restore to Complainant any leave used during the period in question as a
result of the unlawful discrimination. Complainant shall cooperate with the Agency
and provide it with information respecting what leave he took as a result of the
discrimination.

5. Within sixty (60) calendar days of the date this decision is issued, the Agency shall
pay $90,040.90 in attorneys’ fees and $3,756.11 in costs.

6. Within ninety (90) calendar days of the date this decision is issued, the Agency shall
provide at least eight (8) hours of in-person or interactive training to its managers and
staff at the National EEO Investigative Services Office in Tampa, Florida regarding
their responsibilities concerning case processing and developing a complete and
impartial investigative record.

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7. Within sixty (60) calendar days of the date this decision is issued, the Agency shall
consider taking appropriate disciplinary action against the responsible National EEO
Investigative Services Office management officials. The Commission does not
consider training to be disciplinary action. The Agency shall report its decision to the
Compliance Officer. If the Agency decides to take disciplinary action, it shall
identify the action taken. If the Agency decides not to take disciplinary action, it
shall set forth the reason(s) for its decision not to impose discipline. If the responsible
management officials have left the Agency's employ, the Agency shall furnish
documentation of their departure dates.

8. The Agency shall post a notice in accordance with the Order below.

The Agency is further directed to submit a report of compliance in digital format as provided in
the statement entitled “Implementation of the Commission’s Decision.” The report shall be
submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further,
the report must include evidence that the corrective action has been implemented.
POSTING ORDER (G0617)

The Agency is ordered to post at its National EEO Investigative Services Office in Tampa,
Florida 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.

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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.
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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.

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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

May 17, 2018
Date