U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 , a/k/a Karry S.,1 Complainant, v. Deborah Lee James, Secretary, Department of the Air Force, Agency. Appeal No. 0720140038 Hearing No. 480-2013-00018X Agency No. 9T0R09002 DECISION Simultaneously with the issuance of its Final Order, dated September 2, 2014, the Agency filed an appeal with this Commission from an Equal Employment Opportunity Commission Administrative Judge's (AJ) decision dated July 16, 2014, finding that the Agency had discriminated against Complainant in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. Complainant subsequently filed an appeal2 with this Commission from the Agency's Final Order. For the following reasons, we REVERSE the Agency's Final Order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Coordinator, School Age Program (SAP) at the Agency's 35th Force Support Squadron facility in Misawa, Japan. Complainant filed a complaint on September 30, 2009, in which Complainant alleged the Agency discriminated against her on the bases of race (African American) and retaliation when she was subjected to a hostile work environment, when she was removed from her supervisory position on September 30, 2009, and when she was later removed from federal service on January 8, 2010. In her July 16, 2014 Final Decision regarding Liability and Damages (including attorney's fees), the AJ incorporated three earlier decisions/orders. Specifically, the AJ incorporated her decision dated December 1, 2011, granting default judgment against the Agency for, in part, failure to abide by the AJ's orders. The AJ also incorporated her order dated December 2, 2011,3 in which the AJ denied all evidence regarding Complainant's damages, as a sanction for Complainant's failure to abide by the AJ's orders with respect to discovery. Additionally, the AJ incorporated her order, dated March 29, 2013, wherein the AJ found that Complainant established a prima facie case of discrimination on the basis of retaliation for prior EEO activity, as to both her removal from her probationary School Age Program ("SAP") Coordinator supervisory position September 30, 2009, and with respect to her discharge from Agency employment on January 8, 2010. In her order regarding Complainant's prima facie case, the AJ found the record documented that Complainant applied for, was hired by the Agency into, and was serving a probationary period in the SAP Coordinator Position. That evidence the AJ found: supports that Complainant is qualified for a probationary SAP Coordinator Position, thus negating the Agency's concern that Complainant could be awarded a position for which she is not minimally qualified. Likewise, the record evidence, including but not limited to the evidence establishing that Complainant previously worked for the Agency as a Training and Curriculum Specialist and had completed the minimum schooling requirement to qualify for the Training and Curriculum Specialist under the Agency's new qualification standard, supports that Complainant is qualified for a permanent (nonprobationary) Training and Curriculum Specialist. In her Final Decision of July 16, 2014, the AJ ordered the Agency to provide the following remedies: 1. Complainant shall be reinstated to her choice of a position as a probationary SAP Coordinator who has successfully completed 6.5 months of her probation or a permanent (non-probationary) Training and Curriculum Specialist position. Complainant shall be reinstated to an overseas assignment in one of the aforementioned job positions at Agency's location in Misawa, Japan to serve out the balance of a 36 month term overseas position with the possibility of an extension of her term overseas assignment. . . . The Agency shall bear the costs, if any, of Complainant's relocation to her Agency reinstatement location. 2. The Agency shall remove all references to Complainant's job performance as a probationary SAP Coordinator, her removal from her SAP Coordinator position, and her termination from her OPF, her Agency files, and all supervisory files, within 30 days of the Final Decision in this case, and make all future employment decisions without reference to such performance evaluations, her removal from her SAP Coordinator position, and or her termination. 3. The Agency shall remit attorneys' fees and costs to Complainant as a prevailing party in the amount of $42,860.00 in fees and $651.71 in costs. 4. The Agency shall provide EEO training to the supervisors and managers cited as the responsible management officials who unlawfully discriminated and retaliated against Complainant . . . . 5. The Agency shall prominently post at its facility in Misawa, Japan, a notice of the finding of discrimination in conformity with 29 C.F.R. Part 1614. The notice shall indicate that it is being posted pursuant to this Decision. By Final Order dated September 2, 2014. and Notice of Appeal also dated September 2, 20l4, the Agency issued its final action and notified Complainant and the Commission that it would not be fully implementing the AJ's decision.4 The Agency also gave notice that it was appealing the AJ's decision to the Commission. The Agency's Final Order further notified Complainant and the Commission that the Agency rejected "the AJ's requirements to take appropriate corrective action and the ordered remedies, including reinstatement of . . . complainant and attorney's fees and costs, as there was no factual evidence of discrimination or reprisal." Complainant also filed an appeal regarding the sanctions against Complainant and the remedies ordered by the AJ. ANALYSIS AND FINDINGS The Commissions regulations provide that "[w]hen the agency appeals and the case involves removal, separation, or suspension continuing beyond the date of the appeal, and when the administrative judge's decision orders retroactive restoration, the agency shall comply with the decision to the extent of the temporary or conditional restoration of the employee to duty status in the position specified in the decision, pending the outcome of the agency appeal." 29 C.F.R. § 1614.505(a)(1). If the Agency files an appeal and has not provided the required interim relief, a complainant may request dismissal of the Agency's appeal. 29 C.F.R. § 1614.505(b). See Complainant v. Dep't of the Army, EEOC Appeal No. 0720120038 (July 31, 2013), req. for reconsid. denied, EEOC Request No. 0520140026 (Jan. 28, 2014). Agency's Appeal On appeal, the Agency contends that the AJ erred in deciding to grant default judgment against the Agency. Specifically, the Agency admits that the Report of Investigation was untimely submitted, but that it was not so untimely as to warrant the entry of default. On appeal, Complainant requests that the Commission dismiss the Agency's appeal for failure to provide notice to Complainant regarding interim relief, for failure to reinstate Complainant as ordered by the AJ, and for failure to pay Complainant as ordered by the AJ. Complainant states that while the Agency has said it intends to return her to paid duty status, she has not received any pay. The Agency argues that this appeal brief by Complainant is untimely. We agree and we shall not consider Complainant's brief in this appeal. Nonetheless, we find that the Agency failed to provide notice and interim relief regarding reinstatement as ordered by the AJ and failed to pay Complainant in compliance with 29 C.F.R. § 1614.505. The AJ found that Complainant was discriminatorily terminated. The AJ ordered Complainant to be reinstated to her choice of a position as a probationary SAP Coordinator or permanent (non-probationary) Training and Curriculum Specialist position in Misawa, Japan (or some other mutually agreeable position/location). We find no evidence that the Agency's Final Order notified Complainant of its intent to provide or to deny Complainant the interim relief, pending outcome of the Agency's appeal, as required by 29 C.F.R. §1614.505(a)(1). EEOC regulations regarding interim relief found at 29 C.F.R. §1614.505 include the following duty to notify Complainant of its decision regarding reinstatement and prospective pay and other sums due Complainant under the AJ's remedies order: (a)(3) When the agency appeals, it may delay the payment of any amount, other than prospective pay and benefits, ordered to be paid to the complainant until after the appeal is resolved. If the agency delays payment of any amount pending the outcome of the appeal and the resolution of the appeal requires the agency to make the payment, then the agency shall pay interest from the date of the original decision until payment is made. (4) The agency shall notify the Commission and the employee in writing at the same time it appeals [emphasis added] that the relief it provides is temporary or conditional and, if applicable, that it will delay the payment of any amounts owed but will pay interest as specified in paragraph (b)(2) of this section. Failure of the agency to provide notification will result in the dismissal of the agency's appeal. [emphasis added) (5) The agency may, by notice to the complainant, decline to return the complainant to his or her place of employment if it determines that the return or presence of the complainant will be unduly disruptive to the work environment. However, prospective pay and benefits must be provided. . . . 29 CFR §1614.505 (emphasis added). We find that the Agency's Final Order specifically rejects the AJ's remedies regarding reinstatement and fails to provide Complainant with notice addressing the Agency's duties under 29 C.F.R. § 1614.505(a)(5).5 We find no evidence that Complainant was either reinstated or paid as of December 2, 2014, and accordingly, the Agency's appeal is DISMISSED under 29 C.F.R. § 1614.505(a)(4). See Coulter-Lawson v. U.S. Postal Serv., EEOC Appeal No. 07A50081 (Jan. 11, 2006). The Agency's argument on appeal that it is Complainant's appeal that triggers the need to provide interim relief is incorrect. The obligation to provide interim relief begins "when the agency appeals." 29 C.F.R. §1614.505(a)(3). Furthermore, even if we found that the Agency had provided interim relief, we would still find that the AJ properly found discrimination and properly ordered remedies as modified herein. Complainant's Appeal We turn to the matter of Complainant's appeal. Complainant filed her own appeal from the Agency's Final Order and the AJ's Final Decision regarding liability and damages. On appeal, Complainant challenges the AJ's Decision dated December 2, 2011, in which the AJ sanctioned Complainant for failing to respond to discovery requests from the Agency at the time when, among other matters pending before the AJ, were three motions for sanctions against the Agency filed by Complainant. Complainant contends that the resolution of her motions for sanctions would have impacted the rights and duties of the parties with respect to discovery, and thus Complainant declined to incur time and expenses in the course of responding to the Agency's discovery requests. Complainant also states that the AJ did not grant the Agency's Motion to Compel (and corrected motion), which would have notified Complainant that the AJ intended for Complainant to respond to the Agency's discovery requests. EEOC Regulation 29 C.F.R. §1614.109(e) provides the AJ with broad discretion in the conduct of hearings and the development of the record, including the admission of evidence. See Sims v. U.S. Postal Serv., EEOC Appeal No. 07A50073 (Dec. 22, 2005). We find that the AJ's order striking Complainant's evidence regarding damages considered the events and circumstances that Complainant describes on appeal. We find that Complainant acted at her own peril in failing to respond to the Agency's discovery requests. We do not find that the Agency's conduct and failure to comply with the AJ's scheduling order, as amended, excused Complainant's performance under the same orders regarding the deadlines for discovery. We therefore find that the AJ did not abuse her discretion in the issuance of sanctions against Complainant for failure to abide by the AJ's orders. Attorney's Fees The Commission's regulations authorize the award of reasonable attorney's fees and costs to a prevailing complainant. 29 C.F.R. § 1614.501(e). Fee awards are typically calculated by multiplying the number of hours reasonably expended times a reasonable hourly rate, an amount also known as a lodestar. See 29 C.F.R. § 1614.501(e)(ii)(B); Hensley v. Eckerhart, 461 U.S. 424 (1983). All hours reasonably spent in processing the complaint are compensable, but the number of hours should not include excessive, redundant, or otherwise unnecessary hours. A reasonable hourly rate is based on prevailing market rates in the relevant community for attorneys of similar experience in similar cases. An application for attorney's fees must include a verified statement of attorney's fees accompanied by an affidavit executed by the attorney of record itemizing the attorney's charges for legal services. While the attorney is not required to record in great detail the manner in which each minute of his time was expended, the attorney does have the burden of identifying the subject matters on which he spent his time by submitting sufficiently detailed and contemporaneous time records to ensure that the time spent was accurately recorded. See Spencer v. Dep't of the Treasury, EEOC Appeal No. 07A10035 (May 6, 2003). The attorney requesting the fee award has the burden of proving, by specific evidence, entitlement to the requested fees and costs. Koren v. U.S. Postal Serv., EEOC Request No. 05A20843 (Feb. 18, 2003). EEOC Regulation 29 C.F.R. § 1614.501(e)(1)(iv) provides that: Attorney's fees shall be paid for services performed by an attorney after the filing of a written complaint, provided that the attorney provides reasonable notice of representation to the agency, administrative judge or Commission, except that fees are allowable for a reasonable period of time prior to the notification of representation for any services performed in reaching a determination to represent the complainant. Agencies are not required to pay attorney's fees for services performed during the pre-complaint process, except that fees are allowable when the Commission affirms on appeal an administrative judge's decision finding discrimination after an agency takes final action by not implementing an administrative judge's decision. Written submissions to the agency that are signed by the representative shall be deemed to constitute notice of representation. On appeal, Complainant states that the AJ improperly disallowed 2.1 hours charged for services rendered before the filing of the complaint. We agree. We find that the Commission has awarded attorney's fees including fees billed for a reasonable amount of time expended prior to the filing of the complaint. See Weaver v. U.S. Postal Serv., EEOC Appeal No. 0120130748 (May 1, 2013) (2.9 hours) We find that Complainant's attorney's fee award should include this time (2.1 hours), subject to the across-the-board reduction affirmed herein. Complainant also challenges the AJ's disallowance of 91.3 hours billed during the time that Complainant's removal claim was pending relief through the Merit Systems Protection Board (MSPB). Complainant states that matter before the MSPB was the same as the instant EEO case: removal based on discrimination. Complainant states that the issues are inextricably intertwined and that the AJ erred in disallowing time spent developing Complainant's case before the MSPB that were directly relevant to Complainant's EEO case. We disagree with Complainant. We agree with the AJ that this work before the MSPB is not work in connection with the administrative EEO complaint including the work before the EEOC AJ. Thus, we find that the AJ properly denied reimbursement for attorney services provided in connection with Complainant's MSPB appeal. Complainant further challenges the AJ's disallowance of 0.8 hours expended in connection with Complainant's prior employment at Fort Myer on the grounds that Complainant's prior employment was a proper area of inquiry with respect to Complainant's qualifications for her employment at issue in the instant complaint. We agree with the AJ that this was a separate matter and properly excluded from reimbursable attorney's fees. In her Decision, the AJ notes that the vague entries of Complainant's fee petition create difficulty in separating the entries for each legal matter to which they pertain, but that the hours billed for work on unrelated legal matters was not properly included in the current fee petition. We find that AJ's across-the-board reduction of fees for (among other reasons) vague billing entries was proper and within the AJ's discretion. Complainant concedes that the AJ properly discounted travel time entries by 50% and that the AJ correctly identified a billing error for October 23, 2010. In her Decision, the AJ found that Complainant's fee petition contained vague and duplicative entries warranting a downward adjustment of the attorney's fee. Additionally, the AJ noted excessive billing entries for conferences between Complainant's attorneys. The AJ further found that the fee petition contained entries that lacked sufficient detail from which to determine whether some entries were reasonable. After a careful review of the record, we decline to disturb the AJ's across-the-board reduction of the award by 50%. We consider the degree of success (default judgment) Complainant achieved and the other factors articulated by the AJ in her decision to reduce attorney's fees. We find the record supports the AJ's findings regarding the entries in Complainant's fee petition. We concur that some entries are vague and appear to be duplicative. We concur with the AJ regarding the conferences among Complainant's attorneys and that some entries lack detail sufficient to show whether they are reasonable. We note, as does the AJ, that entries described as "work on case" do not permit meaningful review for reasonableness for time entries over an hour long. Accordingly, we shall modify the AJ's award of attorney's fees to include the hours previously disallowed for pre-complaint work (2.1 hours) which is subject to the across-the-board reduction applied by the AJ. Thus, Complainant shall be awarded an additional 1.05 hours of attorney's fees for a total of $420 in additional attorney's fees ($400/hour x 1.05 hours). We affirm the AJ's fee award in all other respects. CONCLUSION Based on a thorough review of the record, we REVERSE the Agency's Final Order finding no discrimination and we REMAND the complaint to the Agency for the imposition of remedies as ordered by the AJ as slightly modified herein. ORDER The Agency shall take the following remedial actions: 1. Within 30 days of the date this decision becomes final, the Agency shall offer to reinstate to Complainant her choice of a position as a probationary SAP Coordinator who has successfully completed six and one-half months of her probation or a permanent (non-probationary) Training and Curriculum Specialist position. Complainant shall be reinstated to an overseas assignment in one of the aforementioned job positions at the Agency's location in Misawa, Japan to serve out the balance of a 36-month term overseas position with the possibility of an extension of her term overseas assignment. If and only if Complainant agrees to accept reinstatement at a different Agency location, then Complainant may be reinstated to her choice of a probationary SAP Coordinator or a Training and Curriculum Specialist position at any other non-overseas Agency location with no term limitation or at an overseas Agency location to serve out the balance of a 36-month term overseas position with the possibility of an extension of her term overseas assignment. The Agency shall bear the costs, if any, of Complainant's relocation to her Agency reinstatement location. 2. Within 30 days of the date this decision becomes final, the Agency shall remove all references to Complainant's job performance as a probationary SAP Coordinator, her removal from her SAP Coordinator position, and her termination, from her official personnel file, her Agency files, and all supervisory files. The Agency shall make all future employment decisions without reference to such performance evaluations, her removal from her SAP Coordinator position, or her termination. 3. Within 30 days of the date this decision becomes final, the Agency shall remit attorney's fees and costs to Complainant as a prevailing party in the amount of $43,280.00 in fees and $651.71 in costs. 4. Within 180 days of the date this decision becomes final, the Agency shall provide EEO training to: responsible management officials who unlawfully discriminated against Complainant; responsible management officials who were involved in receiving and responding to Complainant's concerns regarding workplace discrimination raised on and after June 2009; and responsible management officials who were involved in the Agency's failure to complete the investigation and to produce the complaint file and report of investigation as ordered by the AJ. The EEO training shall include an explanation of the Agency's responsibility with respect to eliminating discrimination in the federal workplace under Title VII with special emphasis on hostile work environment based on race and retaliation and on their responsibilities concerning EEO case processing. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented. POSTING ORDER (G0914) The Agency is ordered to post at its 35th Force Support Squadron facility, Misawa, Japan, copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he/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 this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) 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, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. Filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations __________________ 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's appeal of the Agency's Final Decision, dated September 19, 2014, was initially docketed as EEOC Appeal No. 0120143252. By letter dated November 4, 2014, the Commission administratively closed Complainant's appeal and consolidated Complainant's appeal with the Agency's appeal. All records pertaining to Complainant's appeal have been placed into the instant record. 3 AJ's Order Striking Any and All Evidence of Complainant's Damages, dated December 2, 2011. 4 The Agency's Final Order did accept the AJ's order dated December 2, 2011, regarding the AJ's sanctions striking Complainant's evidence of damages. 5 The Agency further fails to comply with 29 C.F.R. § 1614.505(a)(4) by failing to indicate whether it intends to pay the attorney's fees included in the remedies awarded by the AJ. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0720140038 2 0720140038