Chapter 11 REMEDIES

In federal EEO law, there is a strong presumption that a complainant who prevails in whole or in part on a claim of discrimination is entitled to full relief which places him/her in the position s/he would have been in absent the agency's discriminatory conduct. See Albermarle Paper Co. v. Moody, 422 U.S. 405, 418-419 (1975).

This Chapter of the Management Directive sets forth guidance for use by agencies and persons seeking remedial relief in a variety of areas, including: back pay, front pay, attorney's fees and costs, awards of compensatory damages, and other forms of equitable relief. This guidance applies only to the federal sector administrative process.

When an agency or the Commission finds that an employee of the agency was discriminated against, the agency shall provide the individual with non-discriminatory placement into the position s/he would have occupied absent the discrimination. For cases in which the employee is not selected for a position or promotion due to discrimination, this would include an offer of placement into the position sought, or a substantially equivalent position. See Carson v. Dep't. of Justice, EEOC Appeal No. 0120100078 (Feb. 16, 2012).

The offer should be made retroactive to the date of the selection in question. The individual should receive all step or pay increases and monetary benefits associated with the position. See Stewart v. Dep't. of Homeland Security, EEOC Request No. 0520070124 (Nov. 14, 2011). A "substantially equivalent position" is a position within the same commuting area. Bakken v. Dep't. of Transportation, EEOC Appeal No. 0120093529 (Aug. 8, 2011).

When the relief ordered includes the offer of a position or a promotion, the offer shall be made to the complainant in writing, providing the complainant fifteen (15) days from receipt of the offer to notify the agency of the acceptance or rejection. Failure to respond within the 15-day time limit shall be construed as a declination. Any back pay liability shall cease to accrue with either the actual placement of the complainant into the position in question, or with the date the offer was declined.

In cases involving a discriminatory termination, the agency should offer to reinstate the complainant to his/her former position retroactive to the date of the termination. See Oni v. Dep't. of the Treasury, EEOC Appeal No. 0720100015 (Oct. 11, 2011). The complainant should also receive all applicable benefits and step or pay increases.

In some cases, there is evidence that discrimination was one of multiple motivating factors for an employment action. In these "mixed motive" cases, the agency does not have to offer complainant the position sought if it can demonstrate by clear and convincing evidence that it would have taken the same action even absent the discrimination. See Montante v. Dep't. of Transportation, EEOC Appeal No. 0120110240 (Nov. 9, 2011), request for reconsideration denied, EEOC Request No. 0520120259 (June 8, 2012). If the agency is able to make this demonstration, the complainant is not entitled to personal relief such as reinstatement, hiring, or promotion. The complainant may still be entitled to declaratory relief, injunctive relief, and/or attorneys' fees and costs. Id.

When an individual accepts an offer of employment as a remedy for discrimination, s/he shall be deemed to have performed service for the agency during the period he would have served but for the discrimination for all purposes except for meeting service requirements for completion of a required probationary or trial period.

When an agency or the Commission finds that an employee of the agency was discriminated against, the agency shall provide the individual with non-discriminatory placement into the position s/he would have occupied absent the discrimination, with back pay computed in the manner prescribed by 5 C.F.R. § 550.805. See 29 C.F.R. § 1614.501(c)(1). The purpose of a back pay award is to restore to the complainant the income he would have otherwise earned but for the discrimination. See Albemarle Paper Co. v. Moody, 422 U.S. at 418-419 (1975); Davis v. U.S. Postal Service, EEOC Petition No. 04900010 (Nov. 29, 1990). A number of discriminatory personnel actions can generate back pay. The most common actions generating back pay are: removals, suspensions, denials of promotions, and failure to hire.

Interest on back pay shall be included in the back pay computation. The back pay computation should also include any applicable step increases or pay differentials. See Morrow v. U.S. Postal Service, EEOC Appeal No. 0720070058 (Nov. 13, 2009) (ordering the agency to provide complainant with a back pay award which included interest, overtime, and night pay differential). Under Title VII, GINA, and the Rehabilitation Act, back pay is limited to two years prior to the date the discrimination complaint was filed.

Back pay includes all forms of compensation and reflects fluctuations in working time, overtime rates, penalty overtime, Sunday premium and night work, changing rates of pay, transfers, promotions, and privileges of employment. The Commission also construes "benefits" broadly to include annual leave, sick leave, health insurance, and retirement contributions. Vereb v. Dep't. of Justice, EEOC Petition No. 04980008 (Feb. 26, 1999); Holly v. U.S. Postal Service, EEOC Petition No. 04A50003 (Nov. 2, 2005).

[T]he Commission recognizes that precise measurement cannot always be used to remedy the wrong inflicted, and therefore, the computation of back pay awards inherently involves some speculation. Hanns v. U.S. Postal Service, EEOC Petition No. 04960030 (September 18, 1997). The Commission has held that uncertainties involved in a back pay determination should be resolved against the agency that has already been found to have committed acts of discrimination. Id. See also Davis v. U.S. Postal Service, EEOC Petition No. 04900010 (Nov. 29, 1990); and Besemer v. U.S. Postal Service, EEOC Petition No. 04890005 (Dec. 14, 1989).

Back pay will be required to cover any overtime or premium pay that would have been worked absent discrimination. The parties often disagree over whether overtime would have been worked and to what extent overtime could have been earned. The overtime component of a back pay award should generally be calculated based upon the average amount of overtime worked by similarly situated employees. Haines v. U.S. Postal Service, EEOC Petition No. 04A50018 (Nov. 23, 2005); Holly v. U.S. Postal Service, EEOC Petition No. 04A50003 (Nov. 2, 2005). If the position is unique, such that a comparison with a similarly situated employee is not possible, the agency should calculate overtime based on the actual overtime worked by the person who was selected for the position. See, for example, Bowman v. U.S. Postal Service, EEOC Appeal No. 0120112333 (Oct. 3, 2011), request for reconsideration denied, EEOC Request No. 0520120091 (Mar. 16, 2012).

The Commission has held that make whole relief requires the agency to make retroactive tax-deferred contributions to the complainant's retirement account for the relevant period. To the extent complainant would have received agency contributions to a retirement fund as a component of her salary, she is entitled to have her retirement benefits adjusted as part of her back pay award, including sums which the account would have earned during the relevant period. The agency should provide its calculations of the amount of contributions to the agency's retirement system that both it and complainant would have made during her absence, as well as the earnings which would have accrued. See Kretschmar v. Dep't. of the Navy, EEOC Petition No. 04A40044 (Mar. 25, 2005).

If the complainant lost a job or did not receive a position due to discrimination, the complainant has the responsibility of mitigating the harm by looking for other work. Ghannam v. Agency for International Development, EEOC Appeal No. 01990574 (June 22, 2004). Wages earned by the employee while separated from the agency are commonly called "interim wages." The agency should deduct the interim wages earned by the complainant from the amount of back pay owed to the complainant as provided for in Title VII. 42 U.S.C. § 2000e (5)(g). If the agency believes that the complainant did not do enough to mitigate lost wages, it must prove so by a preponderance of the evidence. See McNeil v. U.S. Postal Service, EEOC Request No. 05960436 (Dec. 9, 1999).

However, income that the complainant could have earned while still holding the position at the agency should not be subtracted or offset from back pay. "Moonlight" employment is employment that the employee could have engaged in even while federally employed. See 5 C.F.R. § 550.805(e)(1). See Paulk v. U.S. Postal Service, EEOC Petition No. 04A10026 (Oct. 4, 2001) (Commission found that petitioner's overtime earnings were earned from his working 65-80 hours per week in a position he acquired during the period subsequent to his termination from the agency, and thus petitioner could not have held both the supplemental job and the job he lost because of discrimination, and therefore, the agency properly offset these earnings from complainant's back pay award).

A Federal Employees' Compensation Act (FECA) award is meant to compensate for lost wages and/or reparation for physical injury. A claim of back pay against a Federal agency during the same time period covered by a FECA claim would have the potential for a double recovery of back pay. Any portion of a FECA award attributable to lost wages during the back pay period in a discrimination finding will be deducted from the back pay award. The portion of the FECA award that is paid as reparation for physical injuries is not related to wages earned and should not be deducted.

If the agency contends that receipt of workers' compensation would result in double recovery, the agency must determine what portion of the FECA benefits, if any, applied to back pay, leave and other benefits, and what portion of complainant's FECA benefits applied to reparation for physical injuries. See Ulloa v. U.S. Postal Service, EEOC Petition No. 04A30025 (Aug. 3, 2004).

The applicable regulations provide that the amount of back pay awarded shall be reduced by the amounts earnable with reasonable diligence by the person discriminated against. Thus, the complainant has a duty to mitigate or lessen damages by making a reasonable good faith effort to find other employment. This means that the complainant must seek a substantially equivalent position, that is, a position that affords virtually identical compensation, job responsibilities, working conditions, status, and promotional opportunities as the position he was discriminatorily denied. See Knott v. U.S. Postal Service, EEOC Appeal No. 0720100049 (July 5, 2010).

As a general rule, a complainant must be ready, willing, and able to work during the period of back pay recovery in order to receive back pay. The Commission has stated that if an agency can present persuasive evidence that complainant was not able to work during the back pay period, back pay would not be awarded; however, the agency has the burden of proof. Morman v. Dep't. of Defense (Defense Commissary Agency), EEOC Petition No. 04A10006 (July 31, 2002). The back pay regulation 5 C.F.R. § 550.805(c) provides that periods of unavailability may not be included in the back pay period unless such periods of time are the result of an illness or injury related to an unjustified or unwarranted personnel action. When a complainant receives workers' compensation due to an agency's failure to provide reasonable accommodation, this does not preclude a back pay award. The receipt of workers' compensation benefits does not indicate that a person was unable to work during the back pay period. See McClendon v. U.S. Postal Service, EEOC Petition No. 04960013 (May 22, 1997).

Unemployment compensation is an interim source of income, but it is a collateral source in the sense that it comes from the state - not the federal employer. An employer cannot set off or mitigate its damages through a collateral source - in this case the state's payment of unemployment compensation even though the employer might have contributed to the source.

When a back payment is made where unemployment had been received, in theory the unemployment compensation represents an overpayment from the state and is due to the state. See Morra-Morrison v. U.S. Postal Service, EEOC Petition No. 04980023 (June 2, 1999). This process of recoupment is generally a matter between the complainant and the state.

The Commission has recognized that an agency is liable for any increased tax liability resulting from receipt of a lump sum of back pay in a single tax year. When an individual receives back pay as a lump sum payment, s/he is entitled to a tax offset payment for the tax year in which she received the payment. Additionally, the individual will have the burden of establishing the amount of his/her increased federal income tax liability to the agency. See Mohar v. U.S. Postal Service, EEOC Appeal No. 0720100019 (Aug. 29, 2011); Teresita Lorenzo v. Dep't. of Defense Education Activity, EEOC Petition No. 01A61644 (September 29, 2005); Warren Goetze v. Dep't. of the Navy, EEO Appeal No. 01991530 (Aug. 23, 2001).

Liquidated damages in Fair Labor Standards Act cases are generally monetary awards equal to, and in addition to, the back pay due to the complainant when a violation is found to be willful or in reckless disregard of the statutes.

In Equal Pay Act cases, willfulness is not a required factor for liquidated damages. Such damages are available for a violation of the EPA unless the agency can prove that it acted in "good faith" and reasonably believed that its actions did not violate the EPA. A finding of willfulness under the EPA, however, may extend the limitations period on back pay from two (2) years to three (3) years.

Since an EPA claim may also be brought as a sex-based wage discrimination claim under Title VII, compensatory damages may also be available if the claim is brought under both statutes.

While liquidated damages for willful violations of the ADEA are available in the private sector under 29 U.S.C. Sec. 626(b), they are not available under the federal sector provisions at Sec. 633a (b). See Jacobson v. Shalala, EEO Request No. 0519930689, (June 2, 1994); Falks v. Rubin, EEOC Request No. 0519960250, (September 6, 1996); Amaro v. Potter, EEOC Appeal No. 0120020929, (May 29, 2003).

Where there has been a finding of discrimination, the complainant is entitled to back pay for time lost from work during the applicable periods, as well as the restoration of any leave used because of the agency's discriminatory actions. Cox v. Social Security Administration, EEOC Appeal No. 0720050055 (Dec. 24, 2009). For example, the restoration of leave taken for purposes of avoiding or recovering from a discriminatory hostile work environment is a valid component of equitable relief. See Burton v. Dep't. of Justice, EEOC Appeal No. 0720090046 (June 9, 2011); see also Lamb v. Social Security Administration, EEOC Appeal No. 0120103232 (Mar. 21, 2012) (leave restoration ordered where denial of reasonable accommodation resulted in leave usage); Complainant v. Dep't. of Defense, EEOC Appeal No. 0120084008 (July 6, 2014) (leave restoration ordered where leave used in lieu of improperly denied official time).

Front pay is an equitable remedy that compensates an individual when reinstatement is not possible in certain limited circumstances. The Commission has held that front pay may be awarded in lieu of reinstatement when: (1) no position is available; (2) a subsequent working relationship between the parties would be antagonistic; or (3) the employer has a record of long-term resistance to anti-discrimination efforts. Brinkley v. U.S. Postal Service, EEOC Request No, 05980429 (Aug. 12, 1999). The fact that front pay is awarded in lieu of reinstatement implies that the complainant is able to work but cannot do so because of circumstances external to the complainant. See Cook v. U.S. Postal Service, EEOC Appeal No. 01950027 (July 17, 1998).

The Commission has held that front pay is an equitable remedy to be awarded for a reasonable future period required for the victim of discrimination to reestablish his rightful place in the job market. See Deidra Brown-Fleming v. Dep't. of Justice, EEOC Petition No. 0420080016 (Oct. 28, 2010).

As appropriate, the agency shall also:

1. Cancel an unwarranted personnel action and restore the employee to the status s/he occupied prior to the discrimination;
2. Expunge any adverse materials relating to the discriminatory employment practice from the agency's records;^[1] and
3. Provide the individual with a full opportunity to participate in the employee benefit that was denied - for example, training, preferential work assignments, or overtime scheduling.^[2]

When the finding of discrimination involves a performance appraisal, the appropriate relief should include raising the rating to that which the individual would have received absent the discrimination. McKenzie v. Dep't. of Justice, EEOC Appeal No. 0120100034 (July 7, 2011); Hairston v. Dep't. of Education, EEOC Appeal No. 0120071308 (Apr. 15, 2010). In addition, the individual is entitled to all benefits and awards that s/he would have received if she had achieved the higher performance appraisal rating. Cook v. Dep't. of Labor, EEOC Appeal No. 0720080045 (Feb. 22, 2010).

It is also appropriate to order training for agency personnel found to have engaged in discrimination, and to consider taking disciplinary action against those officials who engaged in the discrimination.^[3] See James v. Dep't. of Agriculture, EEOC Appeal No. 0120073831 (September 22, 2009), request for reconsideration denied, EEOC Request No. 0520100086 (Mar. 22, 2010) (ordering the agency to provide the Selecting Official who discriminated against complainant 16 hours of EEO training and to consider taking disciplinary action against the official). The Commission does not consider training to be "discipline." See Morrow v. U.S. Postal Service, EEOC Appeal No. 0720070058 (Nov. 13, 2009).

For example, in Burton v. Dep't. of Justice, EEOC Appeal No. 0720090046 (June 9, 2011), one of the responsible management officials found to have engaged in unlawful discrimination and retaliation was a high-level management official who set the leadership tone for the entire facility, and, thus, requiring five hours of EEO training for all facility management and supervisory staff was appropriate. See also Kitson v. Dep't. of Justice, EEOC Appeal No. 0720100052 (Feb. 15, 2011), request for reconsideration denied, EEOC Request No. 0520110312 (June 10, 2011) (ordering the agency to provide training for upper-level employees at an agency facility following a finding of discriminatory non-selection); Wagner v. Dep't. of Transportation, EEOC Appeal No. 0120103125 (Dec. 1, 2010) (ordering the agency to provide EEO training to all employees at an agency facility following a finding that agency managers and employees subjected complainant to a hostile work environment).

The Commission has also found that, in cases involving discriminatory policies or practices, the appropriate relief includes ordering the agency to "cease and desist" from adhering to that policy or practice. For example, in Smith v. Dep't. of the Navy, EEOC Appeal No. 0120082983 (Feb. 16, 2010), request for reconsideration denied, EEOC Request No. 0520100287 (July 9, 2010), the Commission ordered the agency to cease and desist from requiring that all contact with EEO Counselors be arranged by management officials.

Following a finding of discrimination, the agency should take steps to ensure that the same type of action does not recur. In Cheeks v. Dep't. of the Army, EEOC Appeal No. 0120091345 (Feb. 1, 2012), the agency was found to have engaged in racial harassment. The agency was ordered to take all necessary steps to ensure that complainant had no contact with the supervisor responsible for the harassment, as well as to provide complainant with a designated management official to whom he could report any subsequent acts of harassment. See also Ighile v. Dep't. of Justice, EEOC Appeal No. 0720110010 (Apr. 13, 2012) (ordering the agency to cease and desist from all hostile conduct directed to complainant, and take appropriate action to ensure that his co-workers cease and desist from any hostile conduct).

Attorney's fees and costs shall be awarded in accordance with 29 C.F.R. § 1614.501(e).

In federal EEO law, there is a strong presumption that a complainant who prevails in whole or in part on a claim of discrimination is entitled to an award of attorney's fees and costs. More specifically, complainants who prevail on claims alleging discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, and the Rehabilitation Act of 1973, as amended, are presumptively entitled to an award of attorney's fees and costs, unless special circumstances render such an award unjust. 29 C.F.R. § 1614.501(e)(1). (Complainants prevailing on claims under the Age Discrimination in Employment Act of 1967, as amended, and the Equal Pay Act of 1963, as amended, are not entitled to attorney's fees at the administrative level.) Only where a Title VII, GINA, or Rehabilitation Act complainant rejects an offer of resolution made in accordance with 29 C.F.R. § 1614.109(c) and does not obtain more relief than the agency had offered, or in the rarest of other circumstances, might an agency limit or deny an award of fees.

1. A "prevailing party," within the meaning of Section 706(k) of Title VII, 42 U.S.C. § 2000e-5(k), is a complainant who has succeeded on any significant issue that achieved some of the benefit the complainant sought in filing the complaint. Texas State Teachers Ass'n v. Garland I.S.D., 489 U.S. 782 (1989). The Commission has relied on a two-part test set forth in Miller v. Staats, 706 F.2d 336 (D.C. Cir. 1983), for determining whether a complainant is a prevailing party. Baldwin v. Dep't. of Health & Human Services, EEOC Request No. 05910016 (Apr. 12, 1991). To satisfy the first part of the test, the complainant must have substantially received the relief sought. Id. To satisfy the second part of the test, there must be a determination that the complaint was a catalyst motivating the agency to provide the relief. Id. (citing Miller, 706 F.2d at 341). A purely technical or de minimis success is insufficient to confer "prevailing party" status. Texas State Teachers Ass'n. at 792.
2. The touchstone is whether the actual relief on the merits materially alters the legal relationship between the parties by modifying the agency's behavior in a way that directly benefits the complainant. Farrar v. Hobby, 506 U.S. 103 (1992); Bragg v. Dep't. of the Navy, EEOC Appeal No. 01945699 (Mar. 7, 1996). Even an award of nominal monetary damages may be sufficient to meet this standard. Farrar. Monetary relief is not required; non-monetary relief such as reinstatement or a higher performance rating is sufficient. Id.
3. An attorney who represents himself is not entitled to an award of fees. Kay v. Ehrler, 499 U.S. 432 (1991). Neither a non-attorney nor a federal employee (including attorneys) who represents a complainant is entitled to an award of fees. 29 C.F.R. § 1614.501(e)(1)(iii).

1. A prevailing complainant is presumptively entitled to fees and costs unless special circumstances render such an award unjust. 29 C.F.R. § 1614.501(e)(1)(i); New York Gaslight Club, Inc. v. Carey, 447 U.S. 54 (1983); Thomas v. Dep't. of State, EEOC Appeal No. 01932717 (June 10, 1994). Special circumstances should be construed narrowly. The following arguments are not sufficient to show special circumstances:
   1. the complainant did not need an attorney;
   2. the complainant's attorney worked for a public interest organization;
   3. the complainant's attorney accepted the case pro bono;
   4. the complainant's attorney was paid from some private fee agreement;
   5. the complainant was able to pay the costs of the case;
   6. the agency acted in good faith;
   7. the agency took prompt action in remedying the discrimination;
   8. the financial burden of any fee would fall to the taxpayers;
   9. the agency has limited funds.

   See Blanchard v. Bergeron, 489 U.S. 87 (1989); Roe v. Cheyenne Mountain Conference Resort, Inc., 124 F.3d 1221 (10th Cir. 1997); Jones v. Wilkinson, 800 F.2d 989 (10th Cir. 1986); Fields v. City of Tarpon Springs, 721 F.2d 318 (11th Cir. 1983); Copeland v. Marshall, 641 F.2d 880 (D.C. Cir. 1980); see also Wise v. Dep't. of Veterans Affairs, EEOC Request No. 05920056 (Apr. 1, 1992).

2. Agencies are not required to pay for attorney's fees for services rendered during the pre-complaint process unless an Administrative Judge issues a decision finding discrimination, the agency issues a final order that does not implement the decision, and the Commission upholds the Administrative Judge's decision on appeal. If the agency agrees to fully implement the Administrative Judge's decision, it cannot be compelled to pay attorney's fees for fees incurred during the pre-complaint process, except that fees may be recovered for a reasonable period of time for services performed in reaching the decision whether to represent the complainant. 29 C.F.R. § 1614.501(e)(1)(iv). The agency and the complainant can agree, however, that the agency will pay attorney's fees for pre-complaint process representation. Id.
3. No attorney's fees may be awarded under the Age Discrimination in Employment Act, see Coome v. Social Security Administration, EEOC Appeal No. 0720120010 (Oct. 12, 2012), or Equal Pay Act, see Jacobsen v. Dep't. of the Navy, EEOC Appeal Nos. 0720100046 and 0720100047 (September 7, 2012), for services performed at the administrative level. Lowenstein v. Baldridge, 38 Fair Empl. Prac. Cas. (BNA) 466 (D.D.C. 1985); 29 C.F.R. § 1614.501(e)(1).

1. A complainant who prevails through a negotiated settlement is entitled to attorney's fees and costs under the same standards as any other prevailing party. Maher v. Gagne, 448 U.S. 122 (1980); Copeland v. Marshall, 641 F.2d 880 (D.C. Cir. 1980); EEOC v. Madison Community Unit Sch. Dist. 12, 818 F.2d 577 (7th Cir. 1987); Cerny v. Dep't. of the Navy, EEOC Request No. 05930899 (Oct. 19, 1994). A settlement agreement that fails, however, to preserve the issue of fees and costs will operate as an implicit waiver of fees and costs. Wakefield v. Matthews, 852 F.2d 482 (9th Cir. 1988); Elmore v. Shuler, 787 F.2d 601 (D.C. Cir. 1986). The Commission strongly encourages parties to resolve fee and cost issues by negotiated settlement.^[4]
2. The Administrative Judge will not review a negotiated fee agreement for fairness or reasonableness, except in class cases. Foster v. Boise-Cascade, Inc., 577 F.2d 335 (5th Cir.)(per curiam), reh'g denied, 581 F.2d 267 (5th Cir. 1978); Jones v. Amalgamated Warbasse Houses, Inc., 721 F.2d 881 (2d Cir. 1983), cert. denied, 466 U.S. 944 (1984). In class cases, the Administrative Judge should review the agreement to ensure that the negotiated fee is fair and reasonable to all parties.

1. A prevailing complainant is entitled to recovery of his/her costs. Costs include those costs authorized by 28 U.S.C. § 1920. 29 C.F.R. § 1614.501(e)(2)(ii)(C). These include: witness fees; transcript costs; and printing and copying costs. In addition, reasonable out-of-pocket expenses may include all costs incurred by the attorney that are normally charged to a fee-paying client in the normal course of providing representation. Hafiz v. Dep't. of Defense, EEOC Petition No. 04960021 (July 11, 1997). These costs may include such items as mileage, postage, telephone calls, and photocopying.
2. A prevailing complainant is entitled to expert fees as part of recoverable attorney's fees. 42 U.S.C. § 1988. The fee is not limited to per diem expenditures, but includes all expenses incurred in connection with the retention of an expert. Id. Recovery is generally limited to testifying experts, but fees may be awarded for non-testifying experts if the complainant can show that the expert's services were reasonably necessary to the case.
3. A prevailing complainant is entitled to compensation for the work of law clerks, paralegals, and law students under the supervision of members of the bar, at market rates, 29 C.F.R. § 1614.501(e)(1)(iii), but not for clerical services. Missouri v. Jenkins, 491 U.S. 274 (1989).
4. Reasonable costs incurred directly by a prevailing complainant (for example, one who is unrepresented or who is represented by a non-lawyer) are compensable. Hafiz, supra. Costs must be proved in the same manner as fees are, and the complainant must provide documentation, such as bills or receipts.
5. Witness fees shall be awarded in accordance with 28 U.S.C. § 1821, except that no award shall be made for a federal employee who is in a duty status when made available as a witness. 29 C.F.R. § 1614.501(e)(2)(iii).

1. Attorney's fees will be computed by determining the "lodestar." The "lodestar" is the number of hours reasonably expended multiplied by a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). By regulation, the Commission uses the same basis for calculating the amount of attorney's fees. 29 C.F.R. § 1614.501(e)(2)(ii)(B).
   1. All hours reasonably spent in processing the complaint are compensable. 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. 29 C.F.R. § 1614.501(e)(1)(iv).
   2. Fees for services rendered during the pre-complaint process may be awarded only under the circumstances set forth above in Section III.B. See 29 C.F.R. § 1614.501(e)(1)(iv).
   3. An attorney is eligible for work performed at the appeals stage for an award of fees, provided the complainant prevails at this stage.
   4. The number of hours should not include excessive, redundant, or otherwise unnecessary hours. Hensley, 461 U.S. at 434; Bernard v. Dep't. of Veterans Affairs, EEOC Appeal No. 01966861 (July 17, 1998). The presence of multiple counsel at hearing or deposition may be considered duplicative in certain situations, such as where one or more counsel had little or no participation or where the presence of multiple counsel served to delay or prolong the hearing or deposition. Hodge v. Dep't. of Transportation, EEOC Request No. 05920057 (Apr. 23, 1992). The presence of multiple counsel is not necessarily duplicative, however, and is often justifiable. Time spent on clearly meritless arguments or motions, and time spent on unnecessarily uncooperative or contentious conduct may be deducted. Luciano v. Olsten Corp., 109 F.3d 111 (2d Cir. 1997); Clanton v. Allied Chemical Corp., 416 F. Supp. 39 (E.D. Va. 1976).
   5. A reasonable hourly rate is a rate based on "prevailing market rates in the relevant community" for attorneys of similar experience in similar cases. Cooley v. Dep't. of Veterans Affairs, EEOC Request No. 05960748 (July 30, 1998) (quoting Blum v. Stenson, 465 U.S. 886 (1984)). A higher rate for time spent at hearing may be reasonable if trial work would command a higher rate under prevailing community standards. Where multiple attorneys have worked on the case, the rate for each attorney should be determined separately. The limits on hourly rates contained in the Equal Access to Justice Act are not applicable.
   6. The applicable rate for fee awards to public interest attorneys is the prevailing hourly rate for the community in general. Hodge v. Dep't. of Transportation, EEOC Request No. 05920057 (Apr. 23, 1992). In Save Our Cumberland Mountains, Inc. v. Hodel, 857 F.2d 1516 (D.C. Cir. 1988), the court held that the prevailing market rate should also be used to determine fee awards to private, for-profit attorneys who represent certain clients at reduced rates, which reflect "non‑economic" goals. See also Cooley v. Dep't. of Veterans Administration, EEOC Request No. 05960748 (July 30, 1998); Hatfield v. Dep't. of the Navy, EEOC Appeal No. 01892909 (Dec. 12, 1989).
   7. 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. Hensley v. Eckerhart, 461 U.S. 424 (1983).
   8. The degree of success is an important factor in calculating an award of attorney's fees. Farrar v. Hobby, 506 U.S. 103 (1992). In determining the degree of success, the relief obtained (including both monetary and equitable relief) should be considered in light of the complainant's goals. City of Riverside v. Rivera, 477 U.S. 561 (1986); Cullins v. Georgia Department of Transportation, 29 F.3d 1489 (1994). Where the complainant achieved only limited success, the complainant should receive only the amount of fees that is reasonable in relation to the results obtained. Hensley v. Eckerhart, 461 U.S. 424 (1983); Cerny v. Dep't. of the Navy, EEOC Request No. 05930899 (Oct. 19, 1994). However, a reasonable fee may not be determined by mathematical formula based on monetary relief obtained. Riverside at 563; Cullins at 1493. The determination of the degree of success should be made on a case-by-case basis. In many cases, an award of equitable relief only or a small award of monetary damages may reflect a high degree of success. Failure to obtain the maximum damages allowable or a large monetary award generally does not reflect limited success.
2. There is a strong presumption that the lodestar represents the reasonable fee. 29 C.F.R. § 1614.501(e)(2)(ii)(B). In limited circumstances, the lodestar figure may be adjusted upward or downward, taking into account the degree of success, the quality of representation, and long delay caused by the agency. The lodestar may be adjusted only under the circumstances described in this subpart.
   1. An award of attorney's fees may be enhanced in cases of exceptional success. The complainant must show that such an enhancement is necessary to determine a reasonable fee. City of Burlington v. Dague, 505 U.S. 557 (1992). Conversely, a fee award may be reduced in cases of limited success. Texas State Teachers Ass=n v. Garland I.S.D., 489 U.S. 782 (1989). However, there is no requirement that fee awards be proportional to the amount of monetary damages awarded. City of Riverside v. Rivera, 477 U.S. 561 (1986).
   2. An award of attorney's fees may be enhanced where the quality of repre­sentation is exceptional. McKenzie v. Kennickell, 875 F.2d 330 (D.C. Cir. 1989). Conversely, the award of attorney's fees may be reduced where the quality of representation was poor, the attorney's conduct resulted in undue delay or obstruction of the process, or where settlement likely could have been reached much earlier but for the attorney's conduct. Lanasa v. City of New Orleans, 619 F. Supp. 39 (E.D. La. 1985); Barrett v. Kalinowski, 458 F. Supp. 689 (M.D. Pa. 1978).
   3. The lodestar may not be enhanced to compensate for the risk of non-payment, risk of losing the case, or difficulty finding counsel. City of Burlington v. Dague, 505 U.S. 557 (1992).
   4. A lodestar may be adjusted to compensate for a long delay where the delay is caused by the agency. Pennsylvania v. Delaware Valley Citizens' Council, 483 U.S. 711 (1987).
   5. If the Administrative Judge or agency determines that an adjustment to the lodestar is appropriate, the Administrative Judge or agency may calculate the adjustment by either adding or subtracting a lump sum from the lodestar figure or by adding or subtracting a percentage of the lodestar. The Administrative Judge or agency has discretion to determine the amount of the adjustment. Normally, the adjustment should be no more or less than 75% of the lodestar figure. The Administrative Judge or agency must provide a detailed written explanation of why the adjustment was made, and what factors supported the adjustment. Coutin v. Young & Rubicam Puerto Rico, Inc., 124 F.3d 331 (1st Cir. 1997).
   6. The party seeking to adjust the lodestar, either up or down, has the burden of justifying the deviation. Copeland v. Marshall, 641 F.2d 880, 892 (D.C. Cir. 1980); Brown v. Dep't. of Commerce, EEOC Appeal No. 01944999 (May 17, 1996).
3. Where a complainant rejects an offer of resolution and the final decision is not more favorable than the offer, attorney's fees and costs incurred after the expiration of the thirty (30)-day acceptance period are not compensable. 29 C.F.R. § 1614.109(c)(3). This regulation further provides that an Administrative Judge may award attorney's fees and costs despite the complainant's failure to accept an offer of resolution where Athe interests of justice would not be served@ by a denial of fees. An example of when fees would be appropriate is where the complainant received an offer of resolution, but was informed by a responsible agency official that the agency would not comply in good faith with the offer (for example, would unreasonably delay implementation of the relief offered). A complainant who rejected the offer for that reason, and who obtained less relief than was contained in the offer of resolution, would not be denied attorney's fees in this situation.

1. When the decision-making authority, that is, the agency, an Administrative Judge, or the Commission, issues a decision finding discrimination, the decision normally should provide, under the standards set forth above, for the complainant's entitlement to attorney's fees and costs. The complainant's attorney then must submit a verified statement of attorney's fees (including expert witness fees) and other costs, as appropriate, to the agency or Administrative Judge within thirty (30) days of receipt of the decision and must submit a copy of the statement to the agency. 29 C.F.R. § 1614.501(e)(2)(i).^[5]

   A statement of attorney's fees and costs must be accompanied by an affidavit executed by the attorney of record itemizing the attorney's charges for legal services. A verified statement of fees and costs shall include the following:

   1. a list of services rendered itemized by date, number of hours, detailed summary of the task, rate, and attorney's name;
   2. documentary evidence of reasonableness of hours, such as contemporaneous time records, billing records, or a reasonably accurate substantial reconstruction of time records;
   3. documentary evidence of reasonableness of rate, such as an affidavit stating that the requested rate is the attorney's normal billing rate, a detailed affidavit of another attorney in the community familiar with prevailing community rates for attorneys of comparable experience and expertise, a resume, a list of cases handled, or a list of comparable cases where a similar rate was accepted; and
   4. documentation of costs.

   National Ass'n of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319 (D.C. Cir. 1982). A fee award may be reduced for failure to provide adequate documentation. If seeking an adjustment to the lodestar figure, the fee application shall clearly identify the specific circumstances of the case that support the requested adjustment. Id.

2. The agency may respond to the statement of fees and costs within 30 days of its receipt. If the agency contests the fee request, it must provide equally detailed documentation in support of its arguments. Id.
3. Discovery into the reasonableness of the hours or rate is permissible, but discouraged. The Administrative Judge has discretion to grant or deny permission to conduct discovery by interrogatory or document request.
4. The Administrative Judge or agency will issue a decision determining the amount of attorney's fees or costs due within 60 days of receipt of the statement and affidavit. 29 C.F.R. § 1614.501(e)(2)(ii)(A). The decision should provide a written explanation of any award of fees and costs, including, as appropriate, findings of fact, analysis, and legal conclusions. 29 C.F.R. § 1614.501(e)(2)(ii)(A). The decision must include a notice of right to appeal to the Commission.
5. The Commission encourages the parties to resolve fee and cost issues by negotiated settlement during the 30-day period for filing a fee petition. The Administrative Judge will not review a negotiated fee agreement for fairness or reasonableness, except in class cases.
6. If the Administrative Judge decides to bifurcate the liability and damages determinations in a case, the decision on liability should provide for entitlement to attorney's fees and the subsequent decision on damages should also include the determination of the amount of the award of fees and costs. The complainant's attorney should be directed to submit the statement of fees and costs within 30 days of receipt of the decision finding liability. The attorney may submit a supplemental petition for fees incurred during the damages phase of the case.

1. An Administrative Judge may award interim fees pendente lite^[6] where the complainant has prevailed on an important non-procedural allegation of discrimination in the course of the case. Hanrahan v. Hampton, 446 U.S. 754 (1980); Trout v. Garrett, 891 F.2d 332 (D.C. Cir. 1989). However, interim awards should be granted only under special circumstances, such as where a complainant's attorney has invested substantial time and resources into a case over a long period of time.
2. A prevailing complainant is entitled to an award of fees for time spent on a fee claim including time spent defending the award on appeal. Southeast Legal Defense Group v. Adams, 657 F.2d 1118 (9th Cir. 1981); Lund v. Affleck, 587 F.2d 75 (1st Cir. 1978). However, the Administrative Judge may reduce or eliminate fees for time spent on litigating the fee award where fee claims are exorbitant or the time devoted to preparing a fee claim is excessive. Gagne v. Maher, 594 F.2d 336 (2d Cir. 1979), aff'd, 448 U.S. 122 (1980). A reasonableness standard applies. Black v. Dep't. of the Army, EEOC Request No. 05960390 (Dec. 9, 1998).
3. Even absent a finding of discrimination, the Administrative Judge has authority to impose attorney's fees and costs as an appropriate sanction for refusal to obey discovery or other orders. 29 C.F.R. § 1614.109(f)(3)(v). For example, a complainant may be entitled to attorney's fees when the agency fails without good cause shown to respond to discovery requests, Shine v. U.S. Postal Service, EEOC Appeal No. 01972201 (Dec. 12, 1998), or falsifies documents or testimony, Wichy v. Dep't. of the Air Force, EEOC Appeal No. 01962972 (September 25, 1998). Fees and costs may be awarded for work associated with efforts to secure discovery compliance, even when the complainant does not prevail on the merits. Stull v. Dep't. of Justice, EEOC Appeal No. 01942827 (June 15, 1995).
4. Attorney's fees are available for work pursuing claim for damages. Rivera v. National Aeronautics & Space Administration, EEOC Appeal No. 0120111416 (July 19, 2011).

Compensatory damages are awarded to compensate a complaining party for losses or suffering inflicted due to the discriminatory act or conduct. See Carey v. Piphus 435 U.S. 247, 254 (1978)(purpose of damages is to "compensate persons for injuries caused by the deprivation of constitutional rights"). Compensatory damages "may be had for any proximate consequences which can be established with requisite certainty." 22 Am Jur 2d Damages § 45 (1965) Compensatory damages include damages for past pecuniary loss (out-of-pocket loss), future pecuniary loss, and nonpecuniary loss (emotional harm). See Goetze v. Dep't. of the Navy, EEOC Appeal No. 01991530 (Aug. 23, 2001).

1. Pursuant to Section 102(a) of the Civil Rights Act of 1991, a complainant who establishes his/her claim of unlawful discrimination may receive, in addition to equitable remedies, compensatory damages for past and future pecuniary losses (that is, out of pocket expenses) and non-pecuniary losses (for example, pain and suffering, mental anguish). 42 U.S.C. § 1981a(b)(3). For an employer with more than 500 employees, the limit of liability for future pecuniary and non-pecuniary damages is $300,000. Id. Complainants prevailing on claims under the Age Discrimination in Employment Act of 1967, as amended, and the Equal Pay Act of 1963, as amended, are not entitled to compensatory damages at the administrative level.
2. Under Section 102 of the Civil Rights Act of 1991, compensatory damages may be awarded for past pecuniary losses, future pecuniary losses, and non-pecuniary losses that are directly or proximately caused by the agency's discriminatory conduct. However, Section 102 prohibits such awards for an employment practice that is unlawful because of its disparate impact. Compensatory and Punitive Damages Available under Section 102 of the Civil Rights Act of 1991 (July 14, 1992).
3. However, Section 102 also provides that an agency is not liable for compensatory damages in cases of disability discrimination where the agency demonstrates that it made a good faith effort to accommodate the complainant's disability.

   An agency can demonstrate a good faith effort by proving that it consulted with the individual with a disability and attempted to identify and make a reasonable accommodation. Schauer v. Social Security Administration, EEOC Appeal No. 01970854 (July 12, 2001); compare Luellen v. U.S. Postal Service, EEOC Appeal No. 01951340 (Dec. 23, 1996) (agency demonstrated good faith effort where it consulted with complainant and her physicians in attempting to identify a reasonable accommodation, despite the fact that these efforts were not sufficient to afford complainant a reasonable accommodation); Morris v. Dep't. of Defense, EEOC Appeal No. 01962984 (Oct. 1, 1998) (agency did not make a good faith effort to identify and provide a reasonable accommodation for complainant where it did not make any attempt to find an available office position for complainant in spite of his repeated requests.).

4. The Commission may set out the amount of compensatory damages to be awarded by the respondent agency in its decisions. Alternatively, the Commission may remand the matter to the agency for a determination of the amount of compensatory damages.

1. Non-Pecuniary Damages

   Non-pecuniary damages are losses that are not subject to precise quantification including emotional pain and injury to character, professional standing, and reputation. Compensatory damages are awarded to compensate for losses or suffering inflicted due to discrimination. Punitive damages are not available against the federal government.

   The particulars of what relief may be awarded, and what proof is necessary to obtain that relief, are set forth in detail in the Commission Notice No. 915.002, Compensatory and Punitive Damages Available under Section 102 of the Civil Rights Act of 1991 (July 14, 1992). Briefly stated, the complainant must submit evidence to show that the agency's discriminatory conduct directly or proximately caused the losses for which damages are sought. Id. at 11-12, 14; Rivera v. Dep't. of the Navy, EEOC Appeal No. 01934157 (July 22, 1994).

   The amount awarded should reflect the extent to which the agency's discriminatory action directly or proximately caused harm to the complainant and the extent to which other factors may have played a part. The Commission Notice No. 915.002, Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991 (July 14, 1992) at 11-12. The amount of non-pecuniary damages should also reflect the nature and severity of the harm to the complainant, and the duration or expected duration of the harm. Id. at 14.

   In Carle v. Dep't. of the Navy, the Commission explained that "objective evidence" of non-pecuniary damages could include a statement by the complainant explaining how s/he was affected by the discrimination. EEOC Appeal No. 01922369 (Jan. 5, 1993). Non-pecuniary damages must be limited to the sums necessary to compensate the injured party for the actual harm and should take into account the severity of the harm and the length of the time the injured party has suffered from the harm. Carpenter v. Dep't. of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995).

   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. Statements from others including family members, friends, health care providers, or other EEO 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, significant weight loss or gain, or a nervous breakdown. Id. Complainant's own testimony, along with the circumstances of a particular case, can suffice to sustain his burden in this regard. Id. The more inherently degrading or humiliating the defendant's action is, the more reasonable it is to infer that a person would suffer humiliation or distress from that action. Id.

   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 Service, EEOC Appeal No. 01952288 (Apr. 18, 1996) (citing Carle v. Dep't. of the Navy, EEOC Appeal No. 01922369 (Jan.. 5, 1993)). The absence of supporting evidence, however, may affect the amount of damages appropriate in specific cases. Id.

   Non-pecuniary damages must be limited to compensation for the actual harm suffered as a result of the agency's discriminatory actions. See Carter v. Duncan-Huggans, Ltd., 727 F.2d 1225 (D.C. Cir. 1994); The Commission Notice No. 915.002, Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991 (July 14, 1992) at 13. A proper award should take into account the severity of the harm and the length of time that the injured party suffered the harm. See Carpenter, supra. Additionally, the amount of the award should not be "monstrously excessive" standing alone, should not be the product of passion or prejudice, and should be consistent with the amount awarded in similar cases. See Jackson v. U.S. Postal Service, EEOC Appeal No. 01972555 (Apr. 15, 1999), citing Cygnar v. City of Chicago, 865 F. 2d 827, 848 (7th Cir. 1989). Finally, we note that in determining non-pecuniary compensatory damages, the Commission has also taken into consideration the nature of the agency's discriminatory actions. See Utt v. U.S. Postal Service, EEOC Appeal No. 0720070001 (Mar. 26, 2009); Brown-Fleming v. Dep't. of Justice, EEOC Appeal No. 0120082667 (Oct. 28, 2010).

2. Past Pecuniary Damages

   Compensatory damages may be awarded for pecuniary losses that are directly or proximately caused by the agency's discriminatory conduct. See The Commission Notice No. 915.002, Compensatory and Punitive Damages Available under Section 102 of the Civil Rights Act of 1991 (July 14, 1992) at 8. Pecuniary losses are out-of-pocket expenses incurred as a result of the agency's unlawful action, including job-hunting expenses, moving expenses, medical expenses, psychiatric expenses, physical therapy expenses, and other quantifiable out-of-pocket expenses. Id. Past pecuniary losses are losses incurred prior to the resolution of a complaint through a finding of discrimination, or a voluntary settlement. Id. at 8-9.

   In a claim for pecuniary compensatory damages, complainant must demonstrate, through appropriate evidence and documentation, the harm suffered as a result of the agency's discriminatory action. Rivera v. Dep't. of the Navy, EEOC Appeal No. 01934156 (July 22, 1994); The Commission Notice No. 915.002, Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991 (July 14, 1992), at 11-12, 14; Carpenter v. Dep't. of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995). Objective evidence in support of a claim for pecuniary damages includes documentation showing actual out-of-pocket expenses with an explanation of the expenditure. See The Commission Notice No. 915.002, Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991 (July 14, 1992) at 11-12; Carle v. Dep't. of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993). The agency is only responsible for those damages that are clearly shown to be caused by the agency's discriminatory conduct. Id. To recover damages, the complainant must prove that the employer's discriminatory actions were the cause of the pecuniary loss. The Commission Notice No. 915.002, Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991 (July 14, 1992) at 8.

3. Future Pecuniary Damages

   Future pecuniary losses are losses that are likely to occur after resolution of a complaint. See Compensatory and Punitive Damages Available under Section 102 of the Civil Rights Act of 1991, the Commission Notice No. 915.002 at 9 .

   An award for the loss of future earning potential considers the effect that complainant's injury will have on her ability in the future to earn a salary comparable with what she earned before the injury. Brinkley v. U.S. Postal Service, EEOC Request No. 05980429 (Aug. 12, 1999) citing McKnight v. General Motors Corp., 973 F.2d 1366, 1370 (7th Cir. 1992). Where complainant has shown that her future earning power has been diminished as a result of the agency's discrimination, the Commission has awarded future pecuniary damages for the loss of future earning capacity. See Morrison v. U.S. Postal Service, EEOC Appeal No. 07A50003 (Apr. 18, 2006) (citing Brinkley, supra); Hernandez v. U.S. Postal Service, EEOC Appeal No. 07A30005 (July 16, 2004). Proof of entitlement to loss of future earning capacity involves evidence suggesting that the individual's injuries have narrowed the range of economic opportunities available to her. Carpenter v. Dep't. of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995). Generally, the party seeking compensation for loss of earning capacity needs to provide evidence which demonstrates with reasonable certainty or reasonable probability that the loss has been sustained. Id., (citing Annotation, Evidence of Impaired Earnings Capacity, 18 A.L.R. 3d 88, 92 (1968)). Such evidence need not prove that the injured party will, in the near future, earn less than she did previously, but that "[her] injury has caused a diminution in [her] ability to earn a living." Carpenter, supra, (citing Gorniak v. Nat'l R.R. Passenger Corp., 889 F.2d 481, 484 (3d Cir. 1989)).