01971851
10-27-1998
Virginia A. McCann, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Virginia A. McCann, )
Appellant, ) Appeal Nos. 01971851
) 01981491
v. ) Agency Nos. AR000960637
) AR000960638
F. Whitten Peters, ) Hearing Nos. 100-94-7125X
Acting Secretary, ) 120-94-5328X
Department of the Air Force, )
Agency. )
)
DECISION
On December 18, 1996 and April 19, 1997, the appellant, by and through
her attorney, filed appeals with this Commission from final agency
decisions dated November 15, 1996 and March 18, 1997 concerning her
complaints of unlawful employment discrimination in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.
As the agency did not submit evidence of when its decisions were received
by the appellant's attorney, we deem the appeals to be timely filed
under 29 C.F.R. �1614.402(b), and they are accepted in accordance with
29 C.F.R. �1614.401.
ISSUES PRESENTED
Whether, pursuant to the agency's finding of discrimination, (1) its
retroactive reinstatement of the appellant was at the correct grade level
with a cut-off date of September 21, 1993, (2) it awarded the appellant
the appropriate amount of back pay, and (3) it awarded the appellant the
appropriate amount of compensatory damages; and (4) whether the appellant
is entitled to interest on the agency's awards of compensatory damages.
BACKGROUND
The appellant was employed with the agency as a Family Advocacy Program
Specialist, GS-9, in the Family Advocacy Program within the Mental
Health Clinic, 39th Tactical Group Hospital, Incirlik Air Base, in Turkey.
Her prior job was as a Family Advocacy Therapist, GS-11, with the agency
in the United States (U.S.).
The appellant was removed during her probationary period effective
April 17, 1992 under charges that she falsified her application for
federal employment and appointment affidavit. She had a hearing before
an Equal Employment Opportunity Commission Administrative Judge (AJ) on
liability issues. It contained testimony relevant to reinstatement and
back pay matters. She then had a second hearing with the AJ on damages.
Before the second hearing, the AJ issued a recommended decision finding,
in relevant part, that the appellant refuted the falsification charges,
and that she was removed in reprisal for EEO activity. After the second
hearing, the AJ issued a recommended decision awarding equitable relief
and compensatory damages. Thereafter, the agency issued a final decision
which adopted the AJ's finding of discrimination. The decision awarded
equitable relief, modified the AJ's award of compensatory damages,
and deferred a complete decision on pecuniary compensatory damages.
It gave the appellant an opportunity to submit additional evidence
on pecuniary damages. The agency then issued a recommended decision
awarding additional pecuniary damages.
ANALYSIS AND FINDING
ISSUES 1 AND 2
The appellant informed the EEO counselor that she sought reinstatement
outside the Family Advocacy Clinic. The AJ ordered the agency to
offer the appellant a "comparable position" with back pay, interest,
and benefits.
A "notification of personnel action" form indicated that the appellant
was removed from a term appointment effective September 22, 1991, not
to exceed September 21, 1993. In one final decision, the agency awarded
the appellant a retroactive reinstatement to her former position through
September 21, 1993. It reasoned that this was when her appointment
was scheduled to expire. It awarded the appellant back pay, interest,
and all benefits.
On appeal, the appellant argues that there is no evidence her appointment
would not have continued beyond September 21, 1993. She testified
that she was appointed with the understanding that she would work for
four years, with the option of a fifth year. (HT 2, p. 62).<1> This
is corroborated by evidence in the record. An electronic mail message
between the civilian personnel offices in Turkey and the appellant's
former employment location stated that the offer to work in Turkey
was for a term appointment not to exceed four years. (IF, p. 256).
Further, the appellant's former supervisor in Turkey testified that
the appellant had an annual term appointment not to exceed four years.
(HT 1, p. 429). We credit the appellant's testimony that she had an
option to extend her contact by one year, to a fifth year.
The Commission finds that the agency's retroactive reinstatement of the
appellant improperly had a cut-off date of September 21, 1993. It is
likely that the appellant would have continued working beyond September
21, 1993.<2>
While the appellant was a GS-9, she asked for instatement to the GS-11
level. Before removing the appellant, the agency hospital in Turkey was
in the process of deciding whether to grant her privileges (also referred
to as credentials) to treat patients. The Hospital Administrator, who
reported to the Hospital Commander and acted for the Commander in his
absence, testified that he told the latter that based on his review of
the appellant's file from her previous job, she should get privileges.
(HT 1, p. 495). The Hospital Administrator testified that there was a
shortage of personnel providing treatment to patients, and he wanted the
appellant to receive privileges so she could take a GS-11 position which
involved patient care and required privileges. (HT 1, pages 489, 507-08).
The Hospital Commander made decisions to grant privileges after reviewing
the recommendations of a Credentials Committee, of which the Hospital
Administrator would be a member. The Hospital Commander testified
that the appellant "was on her way to being privileged and would have
been privileged" had the falsification charges not been raised, and
that with privileges she would have been promoted to a GS-11 position.
(HT 1, pages 326-27, 331).<3> By early March 1992 he learned of the
alleged falsification by the appellant. (Complainant hearing exhibit 1).
The Hospital Commander stated that if there was not a three to five
month delay in receiving the appellant's files from her former job, she
probably would have been granted privileges long before he had negative
information on her. (HT 1, pages 317, 325). Information regarding the
appellant's credentials at her former location was forwarded to Turkey
in late January 1992.
In some circumstances, remedial relief may include a subsequent promotion
which a complainant would have received had she not been
subjected to discriminatory conduct. The complainant has the burden of
establishing the likelihood of such an event. Watson v. Department of
Transportation, EEOC Request No. 05950040 (June 7, 1996). Such relief
is appropriate where it is necessary to make a complainant whole.
The appellant established by a preponderance of the evidence that she
would have been granted privileges and promoted to a GS-11 position
requiring privileges had the falsification charges and connected removal
not occurred. Moreover, the Hospital Commander's testimony revealed
that the time line to grant privileges was normally short. Given this,
the Commission finds that the agency should have instated the appellant
to the position of FAIS, GS-11, effective April 17, 1992, the date of
her removal.
At the second EEOC hearing in April 1996, the appellant testified that
after her termination she commenced employment on approximately January
31, 1994, that she was currently working in a supervisory capacity at
the GS-11 level, and was not interested in returning to the agency.
(HT 2, p. 178). She was hired into a Child Abuse/Child Neglect section.
The appellant's prior four year term appointment with the agency, with
the option of a fifth year if exercised, would have expired on September
21, 1996. Accordingly, she is entitled to back pay at the GS-11 level,
interest on back pay and benefits, including incremental within grade
increases, through September 21, 1996, less agency payments already
made to her and her mitigation of back pay losses. The agency shall
retroactively instate the appellant to the position of FAIS, GS-11,
commencing April 17, 1992. The agency, however, is not required to make
the appellant a current offer of instatement since the term appointment
would have expired and she testified that she was not interested in
returning to the agency.
ISSUE 3
Section 102(a) of the Civil Rights Act of 1991, codified as 42
U.S.C. �1981a, authorizes an award of compensatory damages as part of
make-whole relief for intentional discrimination. Section 1981 a(b)(2)
indicates that compensatory damages do not include back pay, interest
on back pay, or any other type of equitable relief authorized by Title
VII. Section 1981a(b)(3) limits the total amount of compensatory damages
that may be awarded to an appellant at $300,000 since the agency has more
than 500 employees. Past pecuniary losses are not subject to this cap.
Compensatory damages may be awarded for past pecuniary losses, future
pecuniary losses, and nonpecuniary losses that are directly or proximately
caused by the agency's discriminatory conduct. Enforcement Guidance:
Compensatory and Punitive Damages Available Under Section 102 of the
Civil Rights Act of 1991, EEOC Notice No. N 915.002 (July 14, 1992), at 8.
Pecuniary losses are out-of-pocket expenses incurred as a result of the
employer's unlawful action, including medical and other quantifiable
out-of-pocket expenses. Id. at 8-10. Nonpecuniary losses are losses
that are not subject to precise quantification including emotional pain
and loss of health. Id. at 10.
Pecuniary Damages
The appellant was diagnosed in the past with post traumatic stress
disorder (PTSD). The AJ found that the PTSD was caused by a sexual
assault against the appellant in 1972, and that it was reawakened by
the discharge.
The agency awarded pecuniary damages for a variety of losses. On appeal,
the appellant placed one item at issue, i.e., a medical expense.
Specifically, the appellant asked for $2,080 to cover the expense of
deep tissue massage treatments between July 1992 and July 1993 by a
"C.M.T." The appellant indicated that she was treated by the C.M.T. to
address stress related stiffness in her neck and shoulder caused by
the discriminatory removal. The second final agency decision awarded
compensation for this expense at a rate of 40%, for a total of $832.
It reasoned that the appellant only proved a 40% causal nexus between the
injury caused by the discriminatory removal and the massage treatments.
The AJ implicitly found that the complete amount of this medical expense
was proximately caused by the appellant's discriminatory discharge.
The Commission applies the principle that "a tortfeasor takes its
victims as it finds them." Wallis v. United States Postal Service, EEOC
Appeal No. 01950510 (November 13, 1995). The Commission also applies
two general exceptions to this rule. First, when a complainant has a
pre-existing condition, the agency is liable only for the additional
harm or aggravation caused by the discrimination. Second, if the
complainant's pre-existing condition inevitably would have worsened,
the agency is entitled to a reduction in damages reflecting the extent to
which the condition would have worsened even absent the discrimination;
the burden of proof being on the agency to establish the extent of
this entitlement. Id.
The appellant argues on appeal that if there is evidence of a
pre-existing condition and no evidence of how to apportion damages,
the agency is responsible for all the damages incurred. We disagree.
Compensatory damages are awarded to compensate a complaining party for
losses or suffering inflicted due to the discriminatory act or conduct.
They may be had for any proximate consequences which can be established
with requisite certainty. EEOC Notice No. N 915.002 (July 14, 1992),
at 8.
None of the medical information in the file by the appellant's mental
health care providers, or references to their findings, addressed what
caused the appellant's tension and stiffness. The agency correctly
noted that only one written statement by a medical professional, a
"B.S., L.M.T." (apparently a licensed massage therapist) associated the
appellant's physical symptoms to her PTSD. The L.M.T. began treating
the appellant in November 1994. She indicated that due to the PTSD, the
appellant's "situation has been compounded by several...factors." They
were not identified.
In February 1993, the appellant told a physical therapist that she
was returning for a reevaluation of left shoulder pain which had
been recurring for the past 10 years and was worsening each year.
She testified that it started off as being episodic, occurring about
once a year, but then worsened and became chronic after the removal.
The appellant also stated that she had pre-osteoporosis, and that unless
she took calcium supplements, her bones ached. She conceded this may
partially explain her shoulder pain.
Given the sparsity of medical evidence addressing whether there is a
causal nexus between the appellant's removal and her need for massage
treatments, and her pre-existing history of shoulder pain and symptomatic
pre-osteoporosis, we find that the agency's compensation for massage
treatments at a rate of 40% was sufficient.
Nonpecuniary Damages
There is no precise formula for determining the amount of damages for
nonpecuniary losses. An award of compensatory damages for such losses
should reflect the nature and severity of the harm and the duration or
expected duration of the harm. Further, a complainant must establish
a nexus between the harm and the discrimination found.
In finding that the removal caused an aggravation of the appellant's
PTSD, the AJ referenced the opinion of a psychiatrist who evaluated
the appellant on behalf of the agency between February and March 1996.
The psychiatrist opined that the sexual assault of 1972 was the primary
trauma, and the removal reawakened some of the experiences of the
sexual assault. In finding this aggravation to be significant, the AJ
emphasized that the appellant did not seek psychological treatment until
after the discharge, and that she was still in treatment. The appellant
had psychological counseling in late 1992 or early 1993, and began
counseling on a fairly continuous basis in July 1993. She was still in
counseling at the time of the hearing in April 1996.
The AJ found that the appellant credibly testified that as a result of
the discharge, she felt extreme stress and a loss of control of her life.
With regard to this the appellant testified that she was very fearful,
and did not know what was going to happen to her nor whether she would
ever work again or be able to stay in her field. The AJ also recited the
testimony of the psychologist who took over the treatment of the appellant
in August 1995 that the appellant displayed hypersensitivity to criticism
at work because she feared that the Turkey situation would replay itself
and she would lose her job. While not making specific references, the
AJ found that the appellant's testimony regarding the continuing impact
on her day to day life nearly three years after the removal was credible
and confirmed by expert medical evidence. The AJ credited the appellant's
testimony that the stress and anxiety from the discharge caused her trauma
in her shoulder, neck and jaw. The AJ added that the appellant still
took medications for her condition. These included prozac, motrin for
pain, and a choice of haldol and trazadone for sleeping. She commenced
taking these medications in June 1993. Based on the above facts, and
a comparison of damage awards in federal courts, the AJ recommended an
award of $115,000 in nonpecuniary damages.
The agency reduced the award of nonpecuniary damages to $45,000.
It agreed with the finding of the AJ that the appellant provided extensive
credible evidence about the deleterious effects of the discharge on her
mental, emotional, and physical well-being. It found, however, that
while the removal was a significant stressor, there were several other
stressors that aggravated the appellant's condition. It referenced a May
18, 1993 statement the appellant made in support of a claim for veterans'
benefits where she described the affects of the 1972 sexual assault.
She wrote that she had difficulty over the years maintaining an intimate
relationship, and had been aware of men invading her personal space.
She wrote that over the years from time to time she had flashbacks when a
client shared that she was raped, and that when she worked in a sexually
hostile environment in her prior U.S. work location, she sometimes feared
for her life, and had flashbacks and recurring nightmares. Thereafter,
in 1993 a treating psychology technician wrote that the appellant reported
that she had always been a loner.
The agency also noted the testimony of the evaluating psychiatrist
that other events contributed to the appellant's present psychological
condition. These included, among other things, family difficulties
and disagreements over her mother's estate that led to the appellant's
estrangement from her sister, the alleged sexual harassment in her prior
U.S. work location, and a failed romantic relationship. Similarly,
a treating psychotherapist with a masters degree in social work
(M.S.W.) wrote in July 1993 that the appellant was dealing with several
serious stressors, mostly related to treatment she received from the
agency since she filed sexual harassment charges (which stemmed from her
U.S. work location). The appellant's testimony indicated that she told
the M.S.W. that her current emotional condition started in her prior
U.S. work location. The M.S.W. also wrote that the discharge greatly
disrupted the appellant's life.
In his evaluation report, however, the psychiatrist who was contracted
out by the agency found that the appellant's PTSD was reawakened by the
events in her prior U.S. employment and her discharge. He found that
while the appellant apparently had some symptoms following the 1972 sexual
assault, she did not think them worthy of treatment until she perceived
herself as being "raped" by the events in her prior U.S. employment and
the discharge. The appellant testified that while she was impacted by
the events at her prior U.S. work location, the discharge had a greater
psychological impact.
With regard to the appellant's emotional condition following
her discharge, the appellant stated that she was devastated by the
falsification charges and the removal, and that the charges made her feel
ashamed, embarrassed, and frustrated. She felt abandoned in Turkey, and
it was left to her to get out of the country on her own. The appellant
testified that upon her return to the United States, she felt angry,
numb, scattered, depressed and stuck, and that more and more people told
her "you're not the same person that we knew."
The appellant further testified that she had nightmares, and a number
of things would give her bad memories and make her feel numb, such
as seeing agency personnel, and that it was difficult for her to go to
an Air Force base and hear planes take off or see someone in uniform.
She testified that she also withdrew from social activities and denied
herself vacations. The appellant reported to the evaluating psychiatrist
that she avoided people who did not understand her, and avoided previously
enjoyable activities of playing bridge and hot air ballooning.
The appellant indicated that after finding a job, as a result of the
removal, her self-esteem was less stable and she had less confidence
with regard to moving into a position with more responsibility.
The psychologist who commenced treating the appellant in August 1995
testified that the appellant's primary fear was that she would lose her
job unjustly.
The M.S.W. diagnosed the appellant in July 1993 with adjustment disorder
with an anxious mood. She described the appellant as having a depressed
mood, being somatic, and having difficulty sleeping. She also noted
that the appellant was neatly groomed, had an appropriate affect, was
highly motivated, and had senses of mission and humor. In September
1993 the M.S.W. diagnosed the appellant with PTSD. In September 1993
a treating psychology technician found that the appellant displayed low
level PTSD symptomatology and low level chronic distress.
In March 1996, the psychiatrist who evaluated the appellant on behalf of
the agency diagnosed the appellant with PTSD, major depressive disorder,
and probable personality disorder, not otherwise specified. In a mental
status exam, the psychiatrist found that the appellant's mood appeared
sad and anxious, that her affect was appropriate but blunted at times,
and that she described having difficult sleep problems, nightmares, and
intrusive recollections of past traumas. The psychiatrist stated that the
appellant had a depressed mood most of the day, diminished pleasure or
interest in many activities, and fatigue. He found that the depression
was chronic, and reported that the appellant stated she was aware of her
difficulties beginning at least as early as her prior position in the U.S.
The psychologist who commenced treating the appellant in August 1995
painted a more positive picture. She testified that while the appellant
may previously have had PTSD, she no longer had the full constellation
of PTSD symptoms, she had no problems concentrating, and the feelings
caused by the removal may resolve once the instant litigation was over.
She diagnosed the appellant with adjustment disorder with mixed anxiety
and depressed mood.
The Commission's policy is to make damage awards for emotional
harm consistent with awards in similar cases. See e.g., Carpenter
v. Department of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995)
(award of $75,000 in nonpecuniary damages for deterioration in appellant's
medical and emotional condition resulting in his disability retirement.
Aggravation of asthma; panic attacks, insomnia, digestive problems, loss
of spirit, social withdrawal, feelings of hostility and irritability,
loss of libido.); Finlay v. United States Postal Service, EEOC Appeal
No. 01942985 (April 29, 1997) (award of $100,000 in nonpecuniary damages
for severe psychological injury over four years which was expected to
continue for an indeterminate period of time. This included ongoing
depression, frequent crying, concern for physical safety, loss of charm,
lethargy, social withdrawal, concern for physical safety, recurring
nightmares and memories of harassment, a damaged marriage, being disabled
for work, stomach distress, and headaches.)
We agree with the finding of the AJ that the discriminatory discharge
reawakened or aggravated the appellant's PTSD. While the events at the
appellant's prior job in the U.S. also aggravated her PTSD, we agree
with the implication in the recommended decision that the discharge
played a bigger role.
Nevertheless, given Commission awards in similar cases, the AJ's award
of $115,000 in nonpecuniary damages was excessive. The appellant's
injury does not rise to the level of severity meriting a nonpecuniary
award of $100,000 or more. For example, unlike the complainant in
Finlay, the appellant was always able to work, and four years after the
discriminatory incident her injuries were expected to resolve with the
completion of litigation.
Still, we agree with the finding of the AJ that the discriminatory
discharge caused the appellant significant pain and suffering over more
than four years. This has included feelings of psychological numbness,
anger, insomnia, a prolonging of additional depression, flashbacks,
nightmares, intrusive bad thoughts and memories; fear, fatigue, overall
sour mood, diminished pleasure in activities, some social withdrawal,
less confidence on the job and a constant fear of unjustified job loss.
Further, the removal aggravated the appellant's muscle soreness and
tension. After the removal, the appellant needed prolonged psychological
counseling. Given the above, we find an appropriate damage award for
nonpecuniary damages is $75,000.
ISSUE 4
The first final agency decision, which was issued on November 15,
1996, ordered an agency component to pay the appellant $51,790.80
in compensatory damages within 30 days of that unit's receipt of the
decision. The second final agency decision, which was issued on March
18, 1997, ordered the agency component to pay the appellant $8,103.31
in compensatory damages within 30 days of that unit's receipt of the
decision.
In an appeal brief by the appellant's attorney filed in connection with a
subsequent final agency decision on attorney's fees, the attorney avers
that the agency did not pay the above amounts until on or about November
3, 1997.<4> The agency has not contested this.<5>
A recent case by the Commission concerned a final order by the Commission
for a federal employer to pay a specified sum of attorney's fees that
was not paid for three years. The Commission ordered the employer to
pay post-judgement interest to compensate the attorney for the loss
in value of money resulting from the delay in payment. Cole v. United
States Postal Service, EEOC Petition No. 04950009 (February 19, 1997).
In the instant case, as in Cole, there was a final award(s), albeit by the
agency itself, requiring it to pay specific sums to the opposing party
by a specific date. While the appellant claimed that she was entitled
to more damages, the amounts awarded by the agency were uncontested,
and hence final. The delay by the agency in paying the amounts awarded
was excessive and unexplained. Accordingly, as in Cole, the agency must
pay interest to compensate the appellant for the loss in value of money
resulting from the delay.
ORDER
The agency is ordered to take the following remedial actions:
(1) The agency shall retroactively instate the appellant to the position
of FAIS, GS-11, commencing April 17, 1992 to the date the back pay
obligation recited below ends.
(2) The agency shall provide the appellant a check for the appropriate
amount of back pay she would have earned had she been a FAIS, GS-11 for
the period of April 17, 1992 through September 21, 1996, with interest,
and any and all benefits, including any step or incremental increases in
pay, under pertinent Office of Personnel Management Regulations, and 29
C.F.R. �1614.501. The agency may set off this amount with back pay it
has already paid the appellant and with the mitigation of back pay losses
by her. The appellant is ORDERED to cooperate in the agency's efforts
to compute the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it comply.
(3) The agency shall provide the appellant an additional check for
nonpecuniary damages in the amount of $30,000.<6>
(4) The agency shall provide the appellant a check for interest on the
amounts of compensatory damages it awarded her in its final decisions
dated November 15, 1996 and March 18, 1997. The accrual periods for the
interest shall commence 35 days after the date of each respective final
agency decision, and shall end on November 2, 1997. To make the rate of
interest payments consistent, the agency shall pay at the rate provided
in 5 C.F.R. �550.806(d), the same rate used to calculate interest on
back pay.
(5) The agency shall complete the above ordered actions within 60 calendar
days of the date this decision becomes final.
If there is a dispute about the amount of back pay, interest on back pay,
other benefits, compensatory damages and/or interest on compensatory
damages, the agency is ORDERED to provide the appellant a check for the
for the undisputed amount within the applicable time limit set forth
above. The appellant may petition for enforcement or clarification of
the amount in dispute. The petition for clarification or enforcement
must be filed with the Compliance Officer, at the address referenced in
the paragraph entitled "Implementation of the Commission's Decision."
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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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� (Supp. V 1993).
If the appellant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
ATTORNEY'S FEES (H1092)
If appellant 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.
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark,
the request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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 that the Court appoint
an attorney to represent you and that the Court 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 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:
October 27, 1998
Date
Frances
M.
Hart
Executive Officer
Executive Secretariat1The transcripts
for the first and second hearings
are referred to, respectively, as
HT 1 and HT 2, and documents in the
investigative file are referred to
as IF.
2Cf. Edwards v. School Board of Norton, Virginia, 658 F.2d 951, 955-56
(4th Cir. 1981). (Back pay extended beyond the complainant's one-year
contract period because it would likely have been renewed).
3The AJ found that the referenced GS-11 position was a Family Advocacy
Therapist. A document in the record, taken together with the appellant's
testimony, reveal it is actually a Family Advocacy Intervention Specialist
(FAIS) job. (IF, p. 84; HT 1, pages 607-08).
4The appeal from this decision was filed in October 1997, and was docketed
by the Commission as EEOC Appeal No. 01980715.
5The instant decision does not address the issue of attorney's fees or
interest owed on them.
6The instant decision awarded $75,000 in nonpecuniary damages, and the
agency has already paid $45,000 in nonpecuniary damages.