01983435
08-05-1999
Constantine Economou, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Constantine Economou, )
Appellant, )
)
v. ) Appeal No. 01983435
) Agency Nos. AUFS9506F0120,
Louis Caldera, ) AUFS9506F0130,
Secretary, ) AUFS9506F0140
Department of the Army, ) Hearing Nos. 160-96-8300X,
Agency. ) 160-96-8301X,
______________________________) 160-96-8302X
DECISION
On March 30, 1998, Constantine Economou (appellant), by and through
his attorney, timely appealed the final decision of the Department of
the Army (agency), dated February 25, 1998, concluding he had not been
discriminated against in violation of the Civil Rights Act of 1964, as
amended, 42 U.S.C. �2000e et seq., and the Rehabilitation Act of 1973,
as amended, 29 U.S.C. �791 et seq. This appeal is accepted in accordance
with the provisions of EEOC Order No. 960.001.
The record establishes that on August 16, 1993, January 4, 1994, and
September 24, 1994, respectively, appellant filed a series of three
equal employment opportunity (EEO) complaints against the agency.
After many procedural disputes between the parties, including an
appeal to this Commission from the dismissal of some of the issues
raised in appellant's complaints, the agency accepted the complaints
for investigation. At the conclusion of the investigation, appellant
requested an administrative hearing before an Equal Employment Opportunity
Commission (EEOC) administrative judge (AJ). The three complaints were
consolidated for hearing.
During the initial phase of the hearing, the AJ, with the agreement of
the parties, consolidated and redefined the multiple issues raised in the
three complaints. According to the AJ, the issues to be addressed at the
hearing were whether the agency's New York District Commander unlawfully
retaliated against appellant for his prior EEO activity and, with respect
to appellant's second and third complaints, also discriminated against
him on the bases of his national origin (Greek) and/or disabilities, when:
(1) in April and May 1993, the District Commander used secret committees
to reorganize appellant's division without his knowledge, input or
concurrence, which resulted in sections of the Construction Division
being removed and reestablished in other divisions;
(2) the District Commander allowed appellant's leave records to be left
in plain view of visitors in the District's legal office;
(3) appellant received a lower rating ("fully successful") on his
June 30, 1993 performance evaluation than he believed his performance
warranted, and the District Commander refused to discuss it with
appellant or consider upgrading it;
(4) the District Commander interfered with appellant's supervisory
authority by lowering the performance rating of one of appellant's
employees without his knowledge or consent;
(5) the District Commander interfered with the timely payment of
appellant's workers' compensation claim for injuries sustained at work
on May 25, 1993;
(6) the District Commander rated appellant on the supervision of four
area offices which were not under his supervision at the time;
(7) the District Commander blamed appellant for unsubstantiated
deficiencies in conducting various briefings, and mischaracterized
appellant as uncommunicative, uncooperative and overly sensitive to
criticism;
(8) in May 1994, after his return to work following a prolonged absence
due to a work-related injury, the District Commander allegedly threatened
and disparaged appellant, confined him in a separate office in the
executive suite, directed him to undergo a series of psychiatric
examinations, and embarrassed him by providing false information
about him;
(9) on June 9, 1994, the District Commander shouted in appellant's face,
triggering another period of sick leave and a workers' compensation
claim;
(10) the District Commander refused to allow appellant to resume his
duties as chief of the Transportation Division when he returned to
work; and
(11) the District Commander ignored appellant's requests to restore
his annual leave which had been forfeited because appellant had to use
sick leave.
On December 22, 1997, following a hearing at which nine witnesses
testified, the AJ issued a decision concluding appellant had failed to
establish unlawful national origin or disability discrimination with
respect to any of his allegations. The AJ also found that appellant
had failed to establish unlawful retaliation with regard to allegations
nos. 1, 2, 4 and 5. On appeal appellant does not challenge these
conclusions, and they shall, therefore, be affirmed by the Commission
without further discussion. However, the AJ went on to conclude that
the weight of the evidence established that appellant was the victim
of unlawful retaliation for his prior EEO activity with respect to
allegations nos. 3 and 6-11. To remedy appellant for its retaliatory
conduct, the AJ recommended: (1) that appellant's 1993 performance
appraisal rating be raised to an "exceptional" and he receive the
appropriate monetary award for that rating, as well as the retroactive
step increase, with backpay, which he would have allegedly received for an
"exceptional" rating; (2) that appellant be reimbursed for 292 hours of
leave without pay (LWOP) and have the sick leave restored which he was
forced to take as a result of the agency's unlawful actions;<1> (3) that
appellant be reimbursed for any unpaid medical expenses (approximately
$2,000) which he incurred as a result of the agency's unlawful actions;
and that appellant be awarded the amount of $300,000 in compensatory
damages for the "emotional distress and humiliation" he suffered as a
result of the agency's retaliatory actions.
On February 25, 1998, the agency issued its final decision accepting
the AJ's conclusion that no discrimination or retaliation occurred with
regard to issues nos. 1, 2, 4 and 5, but rejecting the AJ's finding of
unlawful retaliation with respect to appellant's remaining allegations.
It is from this decision that appellant now appeals.
The record establishes that, at the time the matters at issue arose,
appellant was employed by the agency as Chief of the Construction
Division, GM-15, New York District, U.S. Army Corps of Engineers.<2>
An employee of the agency since 1972, he assumed the Chief position on
November 1, 1992, as a direct result of the successful prosecution of an
earlier EEO complaint.<3> In June 1992, a new Commander assumed control
of the New York District. It was this individual's predecessor who was
found to have unlawfully retaliated against appellant in the case which
resulted in his retroactive promotion to the Construction Chief position.
However, the task of implementing the relief awarded appellant as a
result of that prior EEO complaint (retroactive promotion) fell on the
new District Commander, who appellant asserted was responsible for the
unlawful retaliation in the instant matters. It is undisputed that the
new District Commander was fully aware of appellant's prior EEO activity.
Appellant alleged that the new District Commander let him know from
the beginning that he thought, "EEO complaints are for GS-5's not for
Chiefs," and that he allegedly said, "I don't want to see anymore
EEO complaints from you and that I'm going to really lean on you."
The District Commander denied making these statements and testified
that he harbored no retaliatory animus towards appellant. However,
at the hearing, the District Commander admitted to being the author
of a handwritten note, made on or about June 9, 1994, in which he made
the following statement about appellant: "I believe he attempts to use
every system at his disposal to avoid work--EEO complaints, disability."
Complainant's Hearing Exhibit 10.
On June 30, 1993, appellant received his first performance appraisal
from the new District Commander, encompassing the period of June 1992
to June 1993. In this appraisal, appellant received an overall rating
of "fully successful." Appellant asserted he should have received an
"exceptional" rating, noting that, prior to the tenure of new District
Commander, he had always received an "exceptional" rating. In the
justification section of the performance appraisal, appellant pointed
to the fact that he was criticized for his supervision of the work of
four area offices. However, these offices were not under appellant's
supervision during the majority of the rating period as a result of the
reorganization which had been effectuated by the District Commander.
Appellant also noted that he was criticized for the fact that the
"Westhampton Beach project" was not started as scheduled. However,
appellant produced evidence that he was not involved with this project
and was out on extended leave during the construction of the project.
The record establishes that on May 25, 1993, appellant fell at work,
resulting in a severe concussion, as well as significant back and neck
injuries. Due to these injuries, he was out of work for nearly a year,
returning on May 17, 1994. During his prolonged absence, appellant
provided the agency with medical documentation supporting his inability
to work, which included references to a recurrence of Post Traumatic
Stress Disorder (PTSD), which apparently originated from a 1991 motor
vehicle accident. Appellant's claim for workers' compensation benefits as
a result of this condition was approved. The record indicates that the
Office of Workers Compensation Programs (OWCP) arranged for appellant to
have four separate medical examinations, two conducted by board-certified
psychiatrists and the other two by neurologists. The medical findings
of all four physicians supported appellant's total disability.
Upon his return to work in May 1994, the District Commander did not allow
appellant to return to his duties as Chief of the Construction Division.
Appellant alleged that the District Commander told him that he would
have to be observed because, referring to appellant's PTSD, he might be a
danger to himself or others. Therefore, appellant was told to move into
the office adjoining the District Commander's office, rather than his
old office, so that he could be kept under observation. Appellant said
he was also told that there would be a 30-day transition period, where
he was not to interact with other members of the Construction Division.
The District Commander conceded that appellant was not immediately
returned to his former duties or office upon his return from sick leave.
Rather, the District Commander explained that he did not want appellant
to interrupt the flow of the work of the Construction Division, so he
imposed a 30-day transition period to bring appellant up-to-date on the
work of the division during his year-long absence.
During the transition period, the District Commander ordered appellant to
obtain a fitness-for-duty examination, including a psychiatric evaluation.
He testified that he did so in light of the fact that appellant's lengthy
absence was attributed in large part to his PTSD, and he thought that
"a second opinion was prudent" on appellant fitness to return to the
stressful responsibilities of the Construction Division Chief. On June
9, 1994, the District Commander entered appellant's office and angrily
berated him for not keeping a scheduled appointment for a psychiatric
evaluation. In fact, appellant had attempted to keep this appointment,
but due to a scheduling error on the part of the agency, was told that
he did not have an appointment on that day. Appellant alleged that the
District Commander would not let him explain, but continued to berate him
and angrily slam his newspaper on appellant's desk. Appellant alleged
he became physically ill as a result of this encounter, and felt he
might have a heart attack. He was accompanied to the infirmary by a
coworker, and later was picked up by his wife and seen by his doctor.
The District Commander admitted to an angry exchange with appellant, but
stated that it was over appellant's failure to comply with a directive to
meet with several other agency employees concerning the reorganization of
appellant's division. While the District Commander stated that they both
raised their voices, and acknowledged slamming a newspaper on appellant's
desk, he denied yelling at appellant in a menacing fashion.
As a result of this incident, appellant was medically unable to return
to work and filed a workers' compensation claim for a recurrence of
his PTSD. This workers' compensation claim was denied by OWCP because
of insufficient evidence of an injury. In July 1994. appellant said
he attempted to return, but was told by the District Commander not to
come back. The District Commander denied hearing from appellant about
returning to work until December 1994. Appellant asserted that he was
forced to take 1020 hours of leave,<4> because he was not permitted to
return to work.
On December 4, 1994, appellant received a memorandum from the District
Commander, proposing to remove him as Chief of the Construction Division.
The notice stated that upon learning appellant was ready to return to
work, his medical records, job description and performance appraisals were
sent for an evaluation by a psychiatrist, specializing in occupational
medicine, at the Walter Reed Army Hospital. The notice stated that the
psychiatrist offered the opinion that it was "unlikely" that appellant
would be able to return to his position as Chief of the Construction
Division in the "foreseeable future." The psychiatrist was quoted as
further indicating that he:
...would not recommend that [appellant] return to a position which
requires engineering judgement and management skills unless his
psychiatrist specifically stated that his insight, judgement, memory and
concentration have returned to pre-morbid levels (i.e., those expected
of an engineer with professional registration). Additionally, the
psychiatrist should state that [appellant] is not a threat to himself
or others due to his reported suicidal ideation.
In response, in early 1995, appellant met with the Brigadier General and
presented him with the findings of three independent psychiatrists who
all stated that appellant was fit to return to work. No psychiatric
impairment was discerned by any of the three psychiatrists, including
no indication of depression or suicidal ideation. The doctors noted
appellant was not taking any medication, although he had reported taking
Xanax, described as a "mild anti-anxiety medication," the year before.
In response, the Brigadier General offered appellant a psychiatric
fitness-for-duty examination, at agency expense, to determine his "ability
to perform [his] duties so as to protect [his] health and well being."
In June 1995, the psychiatrists at Walter Reed Army Medical Center,
who conducted the examination of appellant, advised the agency of
their conclusion that appellant was psychiatrically fit for duty.
No symptoms of depression, anxiety or psychosis were noted. As a result,
the Brigadier General returned appellant to his position as Chief of
the Construction Division, effective June 26, 1995. On that same day,
the District Commander transferred to another position and no longer
supervised appellant's work.
After a careful review of the record in its entirety, the Commission finds
that the AJ's recommended decision supporting his finding of unlawful
retaliation with regard to allegations nos. 3 and 6-10 sets forth the
relevant facts and properly analyzes the appropriate regulations, policies
and laws. Based on the evidence of record, the Commission discerns no
basis to disturb the AJ's conclusion that the agency's actions described
by these allegations were motivated, as least in part, by retaliatory
animus. The Commission notes that the AJ made specific credibility
findings in support of his conclusions in this case regarding the
testimony of appellant and key management witnesses. These credibility
determinations are entitled to deference due to the AJ's first-hand
knowledge, through personal observation, of the demeanor and conduct of
the witnesses at the hearing. Esquer v. United States Postal Service,
EEOC Request No. 05960096 (September 6, 1996); Willis v. Department of
the Treasury, EEOC Request No. 05900589 (July 26, 1990). The Commission,
after an independent review of the record, found no significant evidence
to contradict the AJ's credibility findings. Accordingly, it is the
decision of the Equal Employment Opportunity Commission to REVERSE that
portion of the agency's final decision which rejected the AJ's findings
of unlawful retaliation with respect to appellant's allegations nos. 3
and 6-10. With regard to allegation no. 11, the AJ's decision failed to
specifically address the evidence supporting his finding of retaliation
with regard to this issue. The Commission, upon its own review of the
record, finds that this matter, concerning the restoration/reimbursement
of appellant's leave, should not be addressed as a separate allegation
of retaliation, but rather as an element of the remedial action which
the agency will be ordered to undertake.
Finally, the Commission will address the AJ's recommended award of
non-pecuniary compensatory damages in the amount of $300,000 for the
emotional distress caused appellant by the agency's retaliatory actions.
In this regard, we note that the AJ found that appellant credibly
testified to the emotional injury he suffered, which was manifested by
feelings of stress, anxiety, humiliation and sleeplessness. Based on
this evidence, we concur with the finding that the retaliatory actions
of the agency were the proximate cause of some emotional distress for
appellant, for which he is entitled to be compensated.
The Civil Rights Act of 1991 authorizes awards of compensatory damages for
intentional discrimination in violation of Title VII. 42 U.S.C. �1981a.
The Supreme Court has held that compensatory damages are recoverable
in the administrative process. West, Secretary of Veterans Affairs
v. Gibson, No. 98-238, 1999 WL 380643 (U.S. June 14, 1999). See also,
Jackson v. United States Postal Service, EEOC Appeal No. 01923399
(November 12, 1992), request for reconsideration denied, EEOC Request
No. 05930306 (February 1, 1993); Turner v. Department of the Interior,
EEOC Appeal No. 01956390 (April 28, 1998); Carpenter v. Department of
Agriculture, EEOC Appeal No. 01945652 (July 17, 1995) (compensatory
damages in a settlement agreement). In addition to an award for past
pecuniary losses incurred because of discrimination, compensatory
damages are also available for future pecuniary losses, emotional
pain, suffering, inconvenience, mental anguish, loss of enjoyment of
life, injury to character and reputation, loss of health, and other
non-pecuniary losses. See Enforcement Guidance: Compensatory and Punitive
Damages Available Under Section 102 of the Civil Rights Act of 1991,
EEOC Notice No. N915.002 (July 14, 1992) (hereinafter referred to as
"Enforcement Guidance: Compensatory and Punitive Damages"). For employers
of more than 500 employees, Section 1981a(b)(3) limits the total amount
of non-pecuniary and future pecuniary compensatory damages that may be
awarded to a complaining party to $300,000. 42 U.S.C. �1981a(b)(3)(D).
There are no precise formulas for determining the amount of damages for
non-pecuniary losses. An award of compensatory damages for non-pecuniary
losses, including emotional harm, should reflect, however, the extent
to which appellant has established that the agency's actions directly
or proximately caused the harm ("the nexus"), and/or the extent to which
other factors also may have caused the harm. In addition, non-pecuniary
damages must be limited to the sum necessary to compensate the injured
party for actual harm, even where the harm is intangible, and should
take into account the severity of the harm and the duration or expected
duration of the harm. Rivera v. Department of the Navy, EEOC Appeal
No. 01934157 (July 22, 1994), request for reconsideration denied, EEOC
Request No. 05940927 (December 11, 1995); Carpenter v. Department of
Agriculture, EEOC Appeal No. 01945652 (July 17, 1995). The Commission
notes that, for a proper award of non-pecuniary damages, 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. Wooten v. Department of Agriculture,
EEOC Appeal No. 01960727 (August 28, 1997).
In Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5,
1993), the Commission described the type of objective evidence considered
relevant when assessing the merits of a complainant's request for
emotional distress damages:
[E]vidence should have taken the form of a statement by appellant
describing her emotional distress, and statements from witnesses, both
on and off the job, describing the distress. To properly explain the
emotional distress, such statements should include detailed information
on physical or behavioral manifestations of the distress, information on
the duration of the distress, and examples of how the distress affected
appellant day to day, both on and off the job. In addition, the agency
should have asked appellant to provide objective and other evidence
linking . . . the distress to the unlawful discrimination . . . .
Objective evidence may include statements from the complainant concerning
his/her 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. Statements from others, including
family members, friends, and health care providers 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,
or a nervous breakdown. Objective evidence also may include documents
indicating a complainant's actual out-of-pocket expenses related to
medical treatment, counseling, and so forth, related to the injury
allegedly caused by discrimination. See Enforcement Guidance: Compensatory
and Punitive Damages, supra. In determining damages, the agency is only
responsible for those damages that are clearly shown to be caused by the
alleged discriminatory conduct, not for any and all damages in general.
See Rountree v. Department of Agriculture, EEOC Request No. 05950919
(February 15, 1996).
In this case, the sole evidence presented by appellant concerning
the emotional harm he suffered as a result of the agency's retaliatory
actions was his own testimony that he experienced significant and ongoing
feelings of humiliation, anxiety, depression, stress and sleeplessness.
In addition, while appellant presented no statements from his health
care providers in support of his claim for compensatory damages, the
record does contain some medical records which were submitted to the
agency during the events at issue. In this regard, the Commission
notes that evidence from a health care provider is not a mandatory
prerequisite for recovery of compensatory damages for emotional distress.
Bernard v. Department of Veterans Affairs, EEOC Appeal No. 01966861 (July
17, 1998). Appellant's own testimony, along with the circumstances of
a particular case, can suffice to sustain his burden. Nonetheless, the
Commission has held that the absence of supporting evidence may affect
the amount of damages deemed appropriate in specific cases. Id.
After careful consideration of all the evidence of record, as well as
the arguments of both parties on appeal, it is the decision of the
Commission that, given Commission awards in similar cases, the AJ's
award of $300,000 in non-pecuniary damages in this case was excessive.
For example, the evidence concerning the severity and duration of the
harm to appellant caused by the agency does not rise to the level of the
evidence of harm supporting the damage awards in Finlay v. United States
Postal Service, EEOC Appeal No. 01942985 (April 29, 1997) ($100,000
award in non-pecuniary 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, recurring
nightmares, a damaged marriage, stomach distress and headaches.); McCann
v. Department of the Air Force, EEOC Appeal No. 01971851 (October 23,
1998) ($75,000 award in non-pecuniary damages for psychological injuries,
including a recurrence of PTSD, which had resulted in the need for more
than three years of continuing therapy after the agency's discriminatory
actions. At the time of her hearing, complainant had been diagnosed with
"chronic" depression, and was taking a number of medications, including
Prozac, Haldol and Trazadone.); Carpenter v. Department of Agriculture,
EEOC Appeal No. 01945652 (July 17, 1995) ($75,000 award in non-pecuniary
damages for a 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, and loss of libido.); and Wallis
v. United States Postal Service, EEOC Appeal No. 01950510 (November 13,
1995) ($50,000 award for pain, suffering and emotional distress where
appellant produced sufficient evidence, including supporting statements
from his psychiatrist, to establish that the agency's acts of reprisal
substantially contributed to the worsening of appellant's mental condition
to the point where he had to take anti-depressive medication, and the
effects were expected to last at least seven years).
Most significantly in the present case, appellant has provided no
evidence that he continued to suffer any residual effects of the agency's
retaliatory actions after his return to work in June 1995. At that time,
the District Commander found responsible for the agency's retaliatory
actions transferred to another position and no longer had any contact
with appellant. The psychological evaluations of appellant performed in
early 1995 revealed no evidence of mental or emotional impairment, with
findings that any prior symptoms of depression or recurrent anxiety had
been resolved. During his June 1995 psychiatric evaluation, appellant
described his own general mood as "great." The Commission also notes
that the record reveals that appellant's prior symptoms of depression
and anxiety can be ascribed, at least in part, to causes other than the
agency's retaliatory actions. Appellant's PTSD had its roots in a 1991
automobile accident which was non-work related. He had a recurrence
of the PTSD between May 1993 and May 1994, after falling off a chair
at work, resulting in a severe concussion and neck and back injuries.
The weight of the evidence indicates that any symptoms of depression,
anxiety or sleeplessness experienced by appellant prior to May 1994<5>
were the result of factors other than the agency's retaliatory actions.
In sum, the agency's actions appear to be the proximate cause of at
least some of the documented psychological problems (mild depression and
anxiety, for which appellant was prescribed Xanax) for a period starting
in May 1994 and ending in early 1995, when appellant submitted psychiatric
opinions that he no longer experienced any symptoms of PTSD or any other
emotional or mental impairment.<6> Therefore, unlike the complainants
in McCann and Wallis, who similarly experienced a recurrence of a prior
mental/emotional illness as a result of their employer's actions,
appellant's symptoms were less severe and much shorter in duration.
Based on the more limited duration and extent of the emotional harm
experienced appellant, but also recognizing that appellant testified
to the additional harm caused by the ongoing humiliation he felt
as a result of the agency's actions and the damage to his reputation,
the Commission finds that he should be awarded the sum of $35,000 in
non-pecuniary compensatory damages. See, e.g., Feris v. Environmental
Protection Agency, EEOC Appeal No. 01983167 (September 18, 1998) ($35,000
for agency's failure to accommodate complainant's physical disability
over a period of time which resulted in tension, damage to self-esteem,
anxiety, anger and sleeplessness).
Accordingly, it is the decision of the Equal Employment Opportunity
Commission to REVERSE the agency's final decision which rejected the AJ's
finding of unlawful retaliation with respect to appellant's allegation
nos. 3 and 6-10. In order to remedy appellant for its retaliatory
actions, the agency shall, comply with the following Order.
ORDER
The agency is ORDERED to take the following remedial action:
(A) Within thirty (30) calendar days of the date this decision
becomes final, the agency is directed to rescind appellant's June 1993
performance appraisal with its summary rating of "fully successful"
performance appraisal at issue, and replace it with an appraisal
supporting a summary rating of "exceptional." Within the same time
period, the agency shall provide appellant with any award, bonus or
retroactive step increase which appellant would have been entitled to
if he had received the "exceptional" rating originally.
(B) The agency shall restore to appellant all sick and annual leave he
was forced to use between May 1994 and June 1995 as a result of the
agency's retaliatory actions. In addition, the agency shall provide
appellant with reimbursement for any medical expenses he may have
incurred during this period because of lapses in his medical insurance
coverage due to being placed on leave without pay.<7>
(C) Training shall be provided to the managers responsible for the
agency's actions in this matter focusing on their obligations and duties
imposed by Title VII.
(D) The agency shall post at the New York District of the U.S. Army
Corps of Engineers copies of the attached notice. Copies of the notice,
after being signed by the agency's duly authorized representative,
shall be posted by the agency within thirty (30) calendar days of the
date this decision becomes final, and shall remain posted for sixty
(60) consecutive days, in conspicuous places, including all places
where notices to employees are customarily posted. The agency shall
take reasonable steps to ensure that said notices are not altered,
defaced, or covered by any other material. The original signed notice
is to be submitted to the Compliance Officer at the address cited in
the paragraph entitled "Implementation of the Commission's Decision,"
within ten (10) calendar days of the expiration of the posting period.
(E) Within sixty (60) calendar days of the date this decision
becomes final, the agency shall award appellant the sum of $35,000
in non-pecuniary damages for the emotional distress he suffered as a
result of the agency's discriminatory actions.
(F) 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 calculation of backpay and other benefits due appellant,
including evidence that the corrective action has been implemented.
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.
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(c) (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.
STATEMENT OF RIGHTS - ON APPEAL
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. � l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such an action in an appropriate
United States District Court. 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. In the
alternative, you may file a civil action AFTER ONE HUNDRED EIGHTY (180)
CALENDARS DAYS of the date you filed your complaint with the agency,
or filed your appeal with the Commission. If you file a civil action,
YOU MUST NAME AS THE DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE
OFFICIAL AGENCY HEAD OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY
HIS OR HER FULL NAME AND OFFICIAL TITLE. Failure to do so may result
in the dismissal of your case in court. "Agency" or "department"
means the national organization, and not the local office, facility or
department in which you work. Filing a civil action will terminate the
administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (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:
August 5, 1999
_________________ _______________________________
DATE Frances M. Hart
Executive Officer
Executive Secretariat
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated _____________ which found
that a violation of the Title VII of the Civil Rights Act 0f 1964,
as amended, 42 U.S.C. �2000e et seq., has occurred at this facility.
Federal law requires that there be no discrimination against any
employee or applicant for employment because of the person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions or privileges of employment.
The U.S. Army Corps of Engineers, New York District, will comply with
such Federal law and will not take action against individuals because
they have exercised their rights under law.
The U.S. Army Corps of Engineers, New York District, has been found
to have unlawfully retaliated against the individual affected by the
Commission's finding because of his prior EEO activity. The Commission
has ordered that this individual be given a new performance appraisal
with any appropriate award, have leave restored, receive payment for
certain medical expenses, and be awarded monetary damages to compensate
him for the emotional harm caused by the agency's actions. The
U.S. Army Corps of Engineers, New York District, will ensure that
officials responsible for personnel decisions and terms and conditions
of employment will abide by the requirements of all Federal equal
employment opportunity laws and will not retaliate against employees
who file EEO complaints.
The U.S. Army Corps of Engineers, New York District, will not in any
manner restrain, interfere, coerce, or retaliate against any individual
who exercises his or her right to oppose practices made unlawful by,
or who participates in proceedings pursuant to, Federal equal employment
opportunity law.
____________________
Date Posted: _____________________
Posting Expires: _________________
29 C.F.R. Part 16141 See footnote 4 of this decision.
2 We note that the facts are presented in great detail in the agency's
final decision, the investigative report and the AJ's recommended
decision, and will only be repeated herein to the extent necessary to
resolve this appeal.
3 The record indicates that appellant had also filed at least three
other EEO complaints between 1987 and 1991.
4 In a hearing exhibit submitted by appellant, he indicated that 292
hours were taken as leave without pay (LWOP), 608 hours were taken
as sick leave, and 120 hours taken as annual leave. However, towards
the end of the hearing, appellant's attorney stipulated that the 292
hours of LWOP was later converted by the agency to sick leave and paid.
Hearing Transcript at 532. Appellant testified, however, that while on
LWOP his medical insurance was temporarily terminated and he incurred
uninsured medical expenses during this period.
5 The Commission also notes that, with the exception of allegation
no. 3, regarding appellant's "fully successful" performance appraisal,
all the other allegations which resulted in findings of retaliation by
the AJ occurred after May 1994.
6 Moreover, appellant testified that he was ready to go back to work
in July 1994 as his recurrence of PTSD had been resolved.
7 The Commission notes that the agency has already converted all of
appellant's leave without pay to sick leave for which he has been paid.