0120091233
07-12-2012
George De Los Santos, Complainant, v. Lisa P. Jackson, Administrator, Environmental Protection Agency, Agency.
George De Los Santos,
Complainant,
v.
Lisa P. Jackson,
Administrator,
Environmental Protection Agency,
Agency.
Appeal No. 0120091233
Agency No. 20040065R6
DECISION
On November 5, 2008, Complainant filed an appeal from the Agency's October 3, 2008, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission MODIFIES the Agency's final decision.
BACKGROUND
In De Los Santos v. Environmental Protection Agency, EEOC Appeal No. 0120061139 (January 11, 2008), Req. for recons. denied, EEOC Request No. 0520080325 (August 4, 2008), we found that Complainant established that he was subjected to a hostile work environment on the basis of his national origin (Hispanic) between December 2001 and August 2004.
Specifically, Complainant established that there were numerous discriminatory comments made about Complainant's national origin, as well as racially offensive comments towards other protected groups. Complainant established that only non-White employees failed the shotgun exercises and have had their weapons confiscated. Additionally, on three separate occasions Complainant's supervisor sent Complainant, who is a Criminal Investigator, to the Dallas Office specifically to perform custodial tasks such as cleaning a conference room, cleaning an equipment room, and cleaning a file room, even though there were seven White agents at the Dallas Office that could have performed the tasks. The supervisor also assigned Complainant remedial administrative tasks, such as acting as a chauffeur and photocopying. The supervisor followed this by writing a letter commending Complainant on his chauffer and photocopying abilities. Additionally, Complainant was yelled at, put down, bad mouthed to other EPA Offices, denied relocation, and denied work related travel.
We found that Complainant established that discrimination towards minorities permeated the workforce in the form of discriminatory and demeaning comments and adverse treatment, and that the Agency was liable for the harassment. We reversed the Agency's final decision, and ordered the Agency to, amongst other things, conduct a supplementary investigation into Complainant's entitlement to compensatory damages.
In correspondence to the Agency dated August 26, 2008, Complainant requested pecuniary and non-pecuniary compensatory damages in the amount of $613,176.61. At the conclusion of the supplementary investigation, the Agency provided Complainant with a final decision on October 3, 2008. The Agency found that Complainant established that he incurred $35,262.00 in compensatory damages as a result of the discrimination. Complainant now appeals that decision to the Commission.
CONTENTIONS ON APPEAL
Complainant contends on appeal that the Agency erred in determining the compensatory damages Complainant is entitled to as a result of the harassment he was subjected to on the basis of his national origin. Complainant contends that the evidence of the record supports his claims for compensatory damages, and he provided additional documentation on appeal to further support his claims. In opposition to the appeal, the Agency contends that its final decision was correct in determining the amount of compensatory damages Complainant is entitled to, and that Complainant should not receive any more than $35,262.00 in compensatory damages as a result of the discrimination.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
Pecuniary Compensatory Damages 1
Compensatory damages may be awarded for pecuniary losses that are directly or proximately caused by the Agency's discriminatory conduct. See Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 at 8 (Notice). 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. Future pecuniary losses are losses that are likely to occur after resolution of a complaint. Id. at 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. Department of the Navy, EEOC Appeal No. 01934156 (July 22, 1994); Notice at 11-12, 14; Carpenter v. Department 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 Notice at 11-12; Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993). Awards are limited to compensation for the actual harm suffered as a result of the agency's discriminatory actions. See Carter v. Duncan-Higgans, Ltd., 727 F.2d 1225 (D.C. Cir. 1994); Notice at 13. The Agency is only responsible for those damages that are clearly shown to be caused by the Agency's discriminatory conduct. Carle v. Department of the Navy, supra. To recover damages, the Complainant must prove that the employer's discriminatory actions were the cause of the pecuniary loss. Notice at 8.
1. Past Pecuniary Damages: Housing Expenses
In our previous decision we found that as part of the overall harassment that Complainant was subjected to, he was denied relocations. Complainant requested housing expenses for these denied relocations from February 2002 until September 2008 in the amount of $92,965.70.
As an initial matter, we note that Complainant requested four transfers during his employment with the Agency, the first request just a few days after he began his employment with the Agency in the El Paso office. While our previous decision does not specify which transfer requests were discriminatory, we find that the Agency's interpretation of the decision was reasonable when it found that the denial of Complainant's second request to transfer, which was on August 29, 2002, was the first transfer denial that was discriminatory. Additionally, we note that in October 2007 Complainant voluntarily retired from federal service. Therefore, Complainant is only entitled to housing expenses from August 2002 through October 2007.
Complainant provided a lease for an apartment in El Paso which reflected that Complainant paid $589 in rent per month for ten months from October 1, 2002, through July 2003, which totals $5,890. The Agency agreed to reimburse Complainant for the $5,890.
Complainant moved to another apartment in El Paso in August 2003 and requested expenses in the amount of $445 per month until May 2004, which totals $4,005. However, Complainant failed to provide any documentation to the Agency that would establish that he actually paid these expenses from August 2003 through August 2004, and as a result the Agency did not reimburse Complainant for these expenses.
Additionally, Complainant asserted that he incurred housing expenses in Houston when he purchased a home as a result of the discriminatory denials of transfer to Dallas. Complainant requested reimbursement for monthly mortgage payments of $1,593.37 from September 2004 until September 2008, totaling $62,164.83. Complainant failed to provide any documentation that would establish what he actually paid for his monthly mortgage payments, or a breakdown of those payments. Despite this, the Agency agreed to pay Complainant the reasonable rental rate for the Houston area established by the U.S. Department of Housing and Urban Development (HUD) for the period of September 2004 until his retirement in October 2007. The Agency noted that it should only be liable for the reasonable rental rate because the Agency's discrimination did not cause Complainant to purchase a house. The Agency concluded that Complainant was entitled to $23,442 for this period.
Complainant requested compensation for the rental of furniture in El Paso and Houston as a result of the Agency's discriminatory failure to relocate him. The record establishes that the first payment for rental furniture was in June 2002, which was before the discriminatory failure to transfer in August 2002. Complainant did provide a six month lease for furniture beginning on October 2, 2002, totaling $930. However, Complainant did not provide any clear documentation2 to support his additional claims for reimbursement for furniture. As a result, the Agency agreed to reimburse him $930 for rental furniture.
Complainant also requested $16,797.97 for utilities. However, Complainant again failed to provide the Agency with any documentation to establish that he actually incurred these expenses. Additionally, the Agency noted that even though Complainant did not provide any documentation for his utility expenses, Complainant was being compensated for utilities because HUD's reasonable rental rate for the Houston area for September 2004 - October 2007 included utilities. As a result, the Agency denied Complainant's request.
Finally, Complainant also requested substantial amounts of money for living expenses, repairs to his home, real estate taxes, insurance, and association fees. However, Complainant failed to provide the Agency with any documentation to establish that he actually incurred these expenses. The only documentation the Complainant provided to the Agency was a general reference to his credit card statements from 2002 until 2008, which included hundreds of charges such as a Royal Caribbean Cruise, medical services, automotive work, electronic purchases, and ordinary living expenses that would have been incurred regardless of the Agency's actions. Khatami v. Dep't of Health and Human Services, EEOC Appeal No. 07A30127 (Sep. 30, 2004) (Complainant is not entitled to pecuniary damages for living expenses because such expenses would have been incurred whether or not the Agency discriminated against Complainant). As a result, the Agency did not reimburse Complainant for these expenses.
On appeal, Complainant for the first time provided documentation for his additional housing expenses after July 2003. New evidence will generally not be accepted on appeal. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) (rev. Nov. 9, 1999), � VI(A)(3). We may accept new evidence, however, if the parties affirmatively demonstrate it was not previously available despite the exercise of due diligence. Id.; Est. of Petersen v. Sec'y of Transp., EEOC Appeal No. 07A50016 (September 21, 2005).
In the instant case, there is nothing in the record that would indicate that the documentation establishing Complainant's housing expenses was not available prior to the appeal. Further, Complainant's attorney stated in the brief in support of the appeal that she failed to provide the additional documentary evidence to support all of Complainant's expenses because it was voluminous. The record establishes that the Agency clearly asked Complainant if he wanted an additional 30 day extension, to which Complainant responded that he did not want an extension and the evidence he provided established his pecuniary and non-pecuniary losses. Finally, while Complainant asserted that it is the Agency's fault for not specifically requesting the additional information, we note that Complainant has the burden of establishing his out-of-pocket expenses by providing documentation showing that the actual out-of-pocket expenses occurred. Notice at 10. Therefore, we find that Complainant is prohibited from providing additional evidence on appeal that was readily available during the investigation.
As a result, we affirm the Agency's finding that Complainant is entitled to $30,262.00 in past pecuniary damages for housing expenses.
2. Past Pecuniary Damages: Work Related Expenses
Complainant asserted that he is entitled to compensation for work related expenses he sustained while he worked in El Paso and Houston, including office supplies, a desk, an office chair, a computer, and a printer. Complainant claimed that he incurred these expenses because the Agency did not have physical office space and did not provide work equipment.
After a review of the record, we find that Complainant did not establish that these expenses were causally related to the Agency's discrimination. Further, Agency officials stated that Complainant was provided a place to work in an Agency office, as well as a computer and a printer. Additionally, even if Complainant had established that these expenses were causally connected to the discrimination, Complainant did not provide clear documentation for these expenses. Instead, Complainant provided general credit card bills which did not establish that the expenses were business related expenses. As a result, we agree with the Agency that these expenses are not compensable.
3. Past Pecuniary Damages: Temporary Duty Allowance
Complainant alleged that he was entitled to $30,265 for the denial of temporary duty allowance (TDY) for when he travelled to Dallas on official government business. The Agency stated that Complainant failed to establish that this claim was causally connected to the discrimination. However in our previous decision we found that Complainant established that he was discriminated against when he was sent to the Dallas Office on three separate occasions to perform custodial tasks. Therefore, Complainant may be eligible for compensation connected to these trips to Dallas.
While Complainant states that he should be granted TDY, Complainant did not establish that he qualified for compensation under TDY regulations. For example, TDY provides for lodging expenses. Complainant stated during the supplementary investigation that he stayed at his family's home in Dallas and did not incur lodging expenses. On appeal, Complainant provided additional documentation for a hotel stay on his way to Dallas. However, as we stated above, Complainant is prohibited from providing additional evidence on appeal that was readily available during the investigation.
Additionally, we note that on appeal Complainant requested $10,846 for TDY per diem. However, Complainant did not provide any explanation for how he arrived at this amount, including the daily per diem rate or how many days of per diem he was requesting. Therefore, we find that Complainant is not entitled to TDY compensation.
4. Past Pecuniary Damages: Cash Award for Use of Foreign Language
Complainant stated that he was denied payment of a cash award for up to 5% of his basic pay as a law enforcement officer who possessed and made substantial use of Spanish in the performance of his official duties. Complainant requested $37,179 in compensation for this award.
A review of the record reveals that Complainant never alleged in his underlying complaint that he was discriminated against when he was denied cash awards. We have previously held that it is not appropriate for a Complainant to raise new claims for the first time on appeal, including in claims for compensatory damages. See Lemons v. Bureau of Prisons, EEOC Appeal No. 0120102516 (Nov. 16, 2011); Hubbard v. Dep't of Homeland Security, EEOC Appeal No. 01A40449 (April 22, 2004). Therefore, we find that Complainant is not entitled to compensation for these cash awards.
5. Past Pecuniary Damages: Pay Differential in Houston
Complainant asserted that when he was transferred to Houston from El Paso on June 1, 2004, his first month salary reflected his El Paso salary, which was $956.80 less than his salary in Houston. A review of the record reveals that Complainant never alleged in his underlying complaint that he was discriminated against when he was paid less his first month in Houston. As we stated above, it is not appropriate for a Complainant to raise new claims for the first time on appeal. Therefore, we find that Complainant is not entitled to compensation for the pay differential for the first month he was in Houston.
6. Future Pecuniary Damages: EPA Gold Medal Award
Complainant asserted that he is entitled to future pecuniary damages for an EPA Gold Medal Award that has consistently paid $10,000. Complainant asserted that sometime on October 13, 2006, he was removed from a case involving an explosion at an oil refinery, and he believes that employees who worked on the case will eventually be recommended for the EPA Gold Medal Award and accompanying cash award.
Future pecuniary losses are losses that are likely to occur after resolution of a complaint. Notice at 9. Here, Complainant was removed from the oil refinery case after the time period relevant to this case and by different management officials than those in the underlying complaint. There is no evidence that establishes that Complainant's removal from the case was linked to the harassment that was addressed in our previous decision. Further, the Commission has held that cash awards are based on the quality of an individual employee's performance, and it would be too speculative to allow a Complainant to receive future pecuniary damages in the form of compensation for a high level of performance. See Morgan v. Dep't of Navy, EEOC Petition No. 04980027 (Dec. 16, 1999); Schellenberg v. Dep't of Transportation, EEOC Appeal No. 01944126 (Dec. 13, 1994). Here, it is speculative whether Complainant or any employee would have received the EPA Gold Medal Award and a corresponding cash award for his work on the case. Therefore we find that Complainant is not entitled to compensation for the EPA Gold Medal Award.
7. Future Pecuniary Damages: Loss of Value in Real Estate
On appeal, Complainant asserted that he is entitled to out-of-pocket future pecuniary losses in the amount of $46,480.733 for future real estate losses. Complainant asserted that he purchased a home in in La Marque, Texas, in 2004 when he was denied a transfer to Dallas, and he requested costs associated with selling the house.
To establish the current value of his home, Complainant compared his house to a similar house three blocks away that is identical in the number of rooms, square footage, and location, and had been for sale on the market for 1 1/2 years and dropped substantially in price. The Commission has previously held that real estate losses are speculative in nature and are not compensable. See Padilla v. Dep't of Housing and Urban Development, EEOC Appeal No. 01A23791 (Sep. 30, 2003) (Real estate losses based on cost of square footage, interest, and appreciation of the real estate market are speculative and not compensable). Accordingly, Complainant is not entitled to future pecuniary damages for the potential loss of value in his La Marque home. Complainant is also not entitled to potential closing costs, real estate commissions, and other similar expenses4 because these costs are also speculative and Complainant provided no documentation to support these expenses.
Non-Pecuniary Compensatory Damages
Complainant requested $150,000 for non-pecuniary damages. The Agency awarded Complainant $5,000 for non-pecuniary damages.
In a claim for compensatory damages, a Complainant must demonstrate, through appropriate evidence and documentation, the harm suffered as a result of the Agency's discriminatory action; the extent, nature, and severity of the harm suffered; and the duration or expected duration of the harm. Rivera v. Dep't of the Navy, EEOC Appeal No. 01934156 (July 22, 1994); Notice 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 non-pecuniary damages claims includes statements from the Complainant and others, including family members, co-workers, and medical professionals. See Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. N915.002 (July 14, 1992) (hereafter referred to as "Notice"); Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (January 5, 1993). 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-Higgans, Ltd., 727 F.2d 1225 (D.C. Cir. 1994); Notice 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. United States Postal Service, EEOC Appeal No. 01972555 (April 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. United States Postal Service, EEOC Appeal No. 0720070001 (March 26, 2009); Brown-Fleming v. Dep't of Justice, EEOC Appeal No. 0120082667 (October 28, 2010).
Complainant submitted a personal statement in which he stated that the discrimination he suffered will haunt him for the rest of his life. Complainant stated that for more than five years the harassment caused him severe emotional suffering such as mental anguish, anger, fright, resentment, frustration, loss of self esteem, irritability, humiliation, embarrassment, anger, betrayal, anxiety, stress, decreased energy, decreased motivation, and depression. Complainant also stated that he suffered from loss of enjoyment of life due to the harassment and the separation from his family, and that the discrimination and lies spread by the responsible management official damaged his character and his reputation.
Complainant also stated that for more than five years the harassment caused him physical ailments, such as headaches, upset stomach, difficulty sleeping, stiffness in cervical and dorsal spine, chest pain, numbness in his limbs, shortness of breath, and diarrhea. Complainant also stated that he lost four teeth from gritting his teeth so hard in anger because of the harassment.
Complainant also alleged that he developed diabetes as a result of the discrimination. Complainant submitted a document from a medical examination dated December 23, 2002, which indicated that Complainant has diabetes. Complainant also submitted an April 11, 2007 letter from his physician which stated that he has been treating Complainant for diabetes for approximately three years. The doctor noted that stress can greatly affect glucose levels, and that Complainant reported to him that working away from his family was a constant stressful situation which affected his glucose levels. Notably, both documents were silent about the actual cause of Complainant's diabetes.
Complainant's wife and brother submitted affidavits that supported Complainant's assertions. Complainant's wife stated that during their daily conversations about the discrimination, she knew that he was enduring severe mental anguish and severe emotional pain and suffering. Complainant's wife reiterated the emotional and physical ailments Complainant experienced as listed above, and that the discrimination caused her mental anguish and emotional pain as well. She also stated that the failure to relocate him caused a strain between Complainant and the rest of the family. Complainant's brother stated that he had numerous conversations with Complainant about the effects of the discrimination, and he reiterated the emotional and physical ailments listed above.
Additionally, a coworker who worked with Complainant and observed the discriminatory harassment submitted an affidavit and stated that the discrimination made Complainant angry, upset, stressed, embarrassed, humiliated, and he often talked about how much he missed his family due to the Agency's failure to relocate him.
After careful consideration of the evidence of record, we find an award of $50,000 for non-pecuniary compensatory damages is appropriate. This amount takes into consideration the nature of the discriminatory acts, the severity of the physical and emotional harm suffered, the length of time Complainant suffered the harm, and is consistent with prior Commission precedent. See McCoy v. Dep't of Veterans Affairs, EEOC Appeal No. 01A43628 (Sept. 22, 2005) (Complainant was awarded $50,000 in non-pecuniary damages where discrimination resulted in Complainant experiencing fatigue, exhaustion, stress, hopelessness, fear, and she experienced frequent headaches, lack of sleep, and crying. Complainant's family and friends corroborated her claim); Arizola v. Dep't of Homeland Security, EEOC Appeal No. 07A30132 (Feb. 4, 2004) (Complainant was awarded $50,000 in non-pecuniary damages after discrimination caused Complainant to suffer for approximately three years from depression, anxiety, headaches, fatigue, fearfulness, tearfulness, and an inability to concentrate); Schinner v. Dep't of Veterans Affairs, EEOC Appeal no. 01A03837 (March 7, 2002) (Complainant was awarded $50,000 in non-pecuniary damages where harassment resulted in Complainant feeling humiliated, embarrassed, isolated, ostracized, she suffered sleeplessness and it caused a strain on her relationship with her husband and children); Powell v. USPS, EEOC Appeal no. 01A50989 (March 3, 2006) (Complainant was awarded $45,000 in non-pecuniary damages where a hostile work environment resulted in Complainant suffering emotional distress, which was corroborated by his wife). Accordingly, we conclude that an award of $50,000 will adequately compensate Complainant for the physical and emotional harm he suffered as a result of the harassment.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we MODIFY the Agency's final decision, and we find that Complainant is entitled to $30,262 in pecuniary compensatory damages, and $50,000 in non-pecuniary compensatory damages. We ORDER the Agency to comply with our order below.
ORDER
The Agency, to the extent it has not already done so, is ordered to take the following remedial actions:
1. Within thirty (60) sixty calendar days of the date this decision becomes final, pay Complainant $50,000 in non-pecuniary compensatory damages.
2. Within sixty (60) calendar days of the date this decision becomes final, pay Complainant $30,262 in pecuniary compensatory damages.
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 of the Agency's payment of compensatory damages.
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.
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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 9-18 (November 9, 1999). 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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
7/12/12
__________________
Date
1 We note that on appeal Complainant withdrew his pecuniary damages claim for $65,000 for relocation expenses.
2 While Complainant asserted that his purchase of furniture in Houston can be established by his credit card bill, we note that it is not possible to distinguish the expenses on the credit card bill.
3 We note that Complainant originally requested $82,353.31 for future pecuniary losses associated with his house in La Marque, but he reduced this amount on appeal.
4 We note that many of these expenses are based on the speculative future value of the home.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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