Edwina H. Jackson, Appellant, and David R. Beaner, Edwina H. Jackson, Appellant, and David R. Beaner, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 15, 1999
01972555 (E.E.O.C. Apr. 15, 1999)

01972555

04-15-1999

Edwina H. Jackson, Appellant, and David R. Beaner, Edwina H. Jackson, Appellant, and David R. Beaner, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Edwina H. Jackson, )

Appellant, )

)

and )

)

David R. Beaner, ) Appeal Nos. 01972555

Appellant, ) 01972556

) Agency Nos. 4D254093

v. ) 4D251093

) Hearing Nos. 100-95-7022X

William J. Henderson, ) 100-95-7025X

Postmaster General, )

United States Postal Service, )

Agency. )

______________________________)

DECISION

On February 10, 1997, Edwina H. Jackson (�appellant Jackson�) and David

R. Beaner (�appellant Beaner�), by and through their attorney, timely

appealed their individual final agency decisions, each dated January 10,

1997, concluding neither appellant had been discriminated against in

violation of Title VII of the Civil Rights Act of 1964, as amended, 42

U.S.C. s 2000e et seq. Appellants had alleged that, in 1993, each was

discriminated against on the basis of race (African-American) and color

(black) when they were subjected to racially motivated harassment from

co-workers. This appeal is accepted in accordance with the provisions

of EEOC Order No. 960.001.<1>

BACKGROUND

The record reveals that, during the relevant time, appellants were

employed by the agency as letter carriers in Virginia. Appellant Jackson

is an African-American female and began her service with the agency in

August of 1988. Appellant Beaner is an African-American male and began

his service with the agency on June 28, 1988. Both appellants worked in

the main post office for Falls Church, Virginia. The Falls Church Post

Office (�facility�) employed approximately two hundred and thirty (230)

employees. While at the facility, appellants worked on the workroom floor

casing mail with the other letter carriers. The record established that

the workroom floor was separated into zones with a supervisor for each

zone and that those employees in the same zone worked in close proximity.

At the time in question, appellants worked in the same zone and had the

same zone supervisor (�ZS�) (African-American).

With regard to the racial atmosphere at the facility, appellant Beaner

provided the following testimony.<2> In early January 1993, a Caucasian

co-worker (�CW1�) standing by the time clock, shouted that he would not

eat at a Filipino co-worker's home because Filipinos eat human beings.

Appellant Beaner stated that also in January 1993, another Caucasian

co-worker shouted to an African-American co-worker that watermelons

were on sale at a local supermarket and that he needed to get to

the watermelons before �you people� get them all. Later in January

1993, Appellant Beaner and an Hispanic co-worker were on the loading

dock when CW1 confronted the co-worker and called him a �spic� and

�wetback.� Appellant Beaner stated that he heard CW1 repeatedly refer

to an African-American co-worker as �chigger� which he believed was a

combination of the co-worker's name and a racial slur. On April 21, 1993,

he was working in a cubicle with an African-American co-worker when CW1

entered the cubicle and repeated a joke from the Howard Stern radio show

which referred to a cowboy putting on his �nigger-kicking boots.�<3>

Appellant Beaner stated that, on May 6, 1993, CW1 told him that �I'm

doing the same thing you people do� when asked why he was not working.

He stated that when he asked CW1 why he had to comment on race, CW1

stated that it is his world and he could do and say anything he wanted.

The following day, appellant Beaner reported the incident to the ZS.

Appellant Jackson testified to the following incidents. In January 1993,

she overheard conversations between unidentified Caucasian employees

stating that �Blacks have big lips� and comparing the physical appearance

of a Black man to that of a monkey. She stated that once when she made

a mistake in routing her mail, a Caucasian co-worker stated that you

Blacks always make mistakes. She stated that CW1 continually called

an African-American co-worker �chigger,� a term she perceived to be

offensive. In April 1993, she was assigned to work with CW1 and during

the course of a conversation about a certain movie, CW1 stated that he

did not go to the movies any more because �Black people sit in the back

of the theater eating chicken.�<4> Appellant Jackson stated that after

she confronted him on his statement, CW1 replied, �it was his world and

he could say what he wanted when he wanted.� Appellant Jackson stated

that in May 1993, CW1 informed her that he would never marry a Black

woman because when they get old, they get fat and out of shape.<5>

She stated that she became angry and warned CW1 to watch his words.

Appellant stated that in June 1993, a Caucasian co-worker (�CW2�)

commented that, in regards to the Denny's restaurant discrimination suit,

that is why he went to Denny's because he did not have to worry about

sitting by or being served by �any� (implying African-Americans).

Other witnesses testified about the racial incidents at the facility.

A co-worker (African-American) stated that CW1 would state that the

best thing that ever happened to him was being White and over 30.

He further testified that CW1 once stated that if killing Martin Luther

King gained employees a day off, other Blacks should be killed to create

other holidays. Several witnesses testified that certain Caucasian

employees would complain loudly about the incompetency of minority

employees at the Merrifield postal facility.<6>

On May 6, 1993, after CW1 made the comment �I'm doing the same thing

you people do,� appellant Beaner reported the incident to the ZS, who

in turn referred him to the station's Postmaster (�PM�) (Caucasian).

The next day, the PM called appellant Beaner to her office to discuss

his allegation. Appellant Beaner met with the PM and gave her a list of

witnesses who heard CW1's statement. The PM assured appellant Beaner that

she would investigate the allegation and contact him at the conclusion of

her investigation. After the PM investigated the allegation including

interviewing CW1, she determined that CW1 had made the alleged comment

and gave him an Official Discussion regarding his inappropriate behavior.

She also determined that derogatory, racially motivated comments were a

problem throughout the facility with inappropriate comments being made

by both African-American and Caucasian employees.<7> As a result of

her conclusions, the PM decided to schedule diversity training for the

facility's employees.

Thereafter, on May 11, 1993, the PM scheduled the Employee Involvement

Coordinator to provide training to the station's employees. However,

the record revealed that the training essentially dealt with sexual

harassment not racial discrimination.

Appellant Beaner stated that he went to the PM for a follow-up at the

end of the month of May. She informed him of her conclusions and that

she gave CW1 an Official Discussion. Appellant Beaner informed the ZS

and PM that he was dissatisfied with the results of the investigation.

He testified that the ZS stated that if he did not like the results,

he could file an EEO complaint. As a result, appellant Beaner made his

initial contact with an EEO Counselor on May 28, 1993.

On June 5, 1993, after overhearing the CW2's Denny's remarks, appellant

Jackson contacted the ZS to complain. The ZS instructed her to write

out her allegation so that he could give it to the PM. Thereafter,

the PM summoned appellant Jackson to her office and stated that she

would speak to CW2 and get back to her. After not hearing from the PM,

appellant Jackson made contact with an EEO Counselor on June 7, 1993.

Appellant Jackson filed her formal complaint on July 12, 1993, while

appellant Beaner filed his formal complaint on July 15, 1993. Following

individual investigations, both appellants requested hearings before an

EEOC Administrative Judge (AJ).

On November 12, 1996, following a consolidated hearing on the merits

at which nine witnesses testified and a consolidated hearing on the

compensatory damage issues at which seven witnesses testified, the AJ

issued his recommended decision (�RD�) concluding that the evidence

supported a finding of discrimination for both appellants based on a

racial hostile work environment. In reaching this conclusion, the AJ

found that appellants gave credible testimony, while several agency

witnesses gave inconsistent and incredible testimony. Addressing the

merits, the AJ found that appellants were members of protected groups

and subjected to unwelcome verbal conduct, involving race and color,

which was based on appellants' race and color. Next, the AJ found that

the unwelcome conduct created an intimidating, hostile and offensive

work environment. Last, the AJ found that the agency knew or should have

known of the hostile work environment, and failed to take prompt remedial

action. Specifically, the AJ found that the PM's actions were broad,

nonspecific and delayed, and fell short of being reasonably calculated

to end the harassment.<8>

As to the issue of relief, after considering the severity and duration of

the harm, the amounts awarded by other courts addressing similar harm,

and the extent of other factors other than discrimination may have

affected the harm, the AJ found that the appellants were entitled to

compensatory damages. The AJ recommended that appellant Jackson be paid

$50,000.00 in nonpecuniary compensatory damages to compensate her for

the outrageous nature of the discrimination and the continued effects of

the discrimination. Similarly, the AJ recommended compensatory damages

in the amount of $67,151.59 for appellant Beaner's claim.<9>

On January 10, 1997, the agency issued a separate final agency decision

(�FAD�) for each appellant, in which it rejected the AJ's findings

of discrimination.<10> Specifically, the agency stated that the AJ

erred in finding that the employees of the facility regularly engaged

in racially offensive conduct. The agency next stated that the remarks

in question did not rise to the level of affecting a term or condition

of appellants' employment. Additionally, the agency contended that

immediate and appropriate corrective actions were taken as soon as

the agency was put on notice of the discriminatory behavior. Last,

the agency asserted that, because appellants only reported isolated

incidents to the PM, there is no basis to determine that the agency had

sufficient knowledge of all of the allegations offered in this case.

It is from these FADs that appellants now appeal.

ANALYSIS AND FINDINGS

Harassment

Appellants allege that they were subjected to a Title VII-based hostile

environment and harassment. The harassment of an employee that would

not occur but for the employee's race, color, sex, national origin,

age, disability, or religion is unlawful if it is sufficiently

patterned or pervasive. Wibstad v. United States Postal Service,

EEOC Appeal No. 01972699 (Aug. 14, 1998)(citing McKinney v. Dole, 765

F.2d 1129, 1138-39 (D.C. Cir. 1985)). In determining that a working

environment is hostile, factors to consider are the frequency of the

alleged discriminatory conduct, its severity, whether it is physically

threatening or humiliating, and if it unreasonably interferes with an

employee's work performance. See Harris v. Forklift Systems, Inc., 510

U.S. 17, 21 (1993); EEOC Notice No. 915.002 (March 8, 1994), Enforcement

Guidance on Harris v. Forklift Systems, Inc. at 3, 6. The Supreme Court

stated: "Conduct that is not severe or pervasive enough to create an

objectively hostile work environment - an environment that a reasonable

person would find hostile or abusive - is beyond Title VII's purview."

Harris, 510 U.S. at 22 (1993).

To establish a prima facie case of hostile environment harassment, a

complainant must show that: (1) s/he belongs to a statutorily protected

class; (2) s/he was subjected to harassment in the form of unwelcome

verbal or physical conduct involving the protected class; (3) the

harassment complained of was based on the statutorily protected class;

and (4) the harassment affected a term or condition of employment

and/or had the purpose or effect of unreasonably interfering with

the work environment and/or creating an intimidating, hostile,

or offensive work environment. Humphrey v. United States Postal

Service, Appeal No. 01965238 (October 16, 1998); 29 C.F.R. �1604.11.

Evidence of the general work atmosphere, involving employees other than

the complainant, also is relevant to the issue of whether a hostile

environment existed in violation of Title VII. Vinson v. Taylor, 753

F.2d 141, 146 (D.C. Cir. 1985), aff'd in relevant part and rev'd in part,

Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986).

To avoid liability for hostile environment harassment, an agency must

show that: 1) the acts/conduct complained of did not occur; 2) the

conduct complained of was not unwelcome; 3) the alleged harassment

was not sufficiently severe or pervasive to alter the conditions of

the victim's employment and create an abusive working environment; 4)

immediate and appropriate corrective action was taken as soon as the

employer was put on notice; and/or 5) there is no basis for imputing

liability to the employer under agency principles. See Vinson, supra.

The Commission agrees with the AJ and finds that appellants have

established prima facie cases of race-based harassment, in that

they are African-American; both were subjected to harassment in the

form of unwelcome verbal conduct involving their race; the harassment

complained of was based on their race; and the harassment had the effect

of unreasonably interfering with the work environment and creating

an intimidating, hostile, and offensive work environment. In making

the above finding, we find that the atmosphere of the facility, with

strong piercing racial statements being made by various individuals,

was sufficiently severe and pervasive to alter the conditions of the

appellants' employment and create an abusive working environment.<11>

We also find that the agency was aware of the conduct in question and

contrary to its assertions, failed to take immediate and appropriate

corrective action as soon as the PM was put on notice of the harassing

conduct. The PM stated that as the result of appellants' complaints,

she gave CW1 and CW2 Official Discussions regarding their conduct,

conducted service talks regarding improper comments, and scheduled

harassment and diversity training. However, we find that given the

testimony regarding the frequency of CW1's actions in the workplace, the

PM actions were not incisive and focused enough to cause an end to his

inappropriate conduct. As the AJ pointed out, the agency's regulations

state that an Official Discussion is appropriate for addressing minor

offenses and are not considered discipline. As for the other actions

by the PM, we find them inadequate. We agree with the AJ and find

that the PM's testimony regarding the service talks is inconsistent and

uncorroborated. With respects to the harassment training, the evidence

shows that the session strictly focused on sexual harassment as opposed

to addressing the racial atmosphere in the facility. Finally, nearly

six months after the complaints, the PM scheduled diversity training

for the facility employees. However, we find that this training did not

constitute a prompt corrective action given the nature of the complaints.

In light of the foregoing, we find that appellants have proven by

the preponderance of evidence that they were subjected discriminatory

harassment in the workplace which was based on their race.

Compensatory Damages

Section 102(a) of the 1991 Civil Rights Act authorizes an award

of compensatory damages for all post-Act pecuniary losses, and for

non-pecuniary losses, such as, but not limited to, emotional pain,

suffering, inconvenience, mental anguish, loss of enjoyment of life,

injury to character and reputation, and loss of health. In Jackson

v. United States Postal Service, EEOC Appeal No. 01923399 (November 12,

1992) req. for reconsid. denied, EEOC Request No. 05930306 (February

1, 1993), the Commission held that Congress afforded it the authority

to award such damages in the administrative process. It based this

assessment, inter alia, on a review of the statutory provisions of the

Civil Rights Act of 1991 in relation to one another and on principles

of statutory interpretation which require statutes to be interpreted

as a whole. In particular, the Commission discussed the meaning of

the statute's definition of the term "complaining party" and the

significance of the reference to the word "action" in Section 102(a)

-- i.e., that the term "action" includes cases in both judicial and

administrative forums. We note that in Section 717(c) of the Civil

Rights Act of 1-964 (42 U.S.C. s2000e et seq.)(CRA), the term "final

action" is used to refer to administrative decisions by agencies or

the Commission, as distinguished from the term "civil action," used

to describe the rights of employees after such final action is taken.

Moreover, Section 717(b) of the CRA conveyed to the Commission the broad

authority in the administrative process to enforce the nondiscrimination

provisions of subsection (a) through "appropriate remedies."

Non-pecuniary and future pecuniary damages are limited to an amount of

$300,000.00. Compensatory damages do not include back pay, interest

on back pay, or any other type of equitable relief authorized by

Title VII. To receive an award of compensatory damages, a complainant

must demonstrate that she has been harmed as a result of the agency's

discriminatory action; the extent, nature and 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), req. for reconsid. denied,

EEOC Request No. 05940927 (December 11, 1995); Compensatory and Punitive

Damages Available Under Section 102 of the Civil Rights Act of 1991,

EEOC Notice No. 915.002 at 11-12, 14 (July 14, 1992). An appellant

is required to provide objective evidence that will allow an agency

to assess the merits of a complainant's request for emotional distress

damages. See Carle v. Department of the Navy, EEOC Appeal No. 01922369

(January 5, 1993).

Nonpecuniary Damages

There are no definitive rules governing the amount of nonpecuniary damages

to be awarded. However, nonpecuniary damages must be limited to the sums

necessary to compensate the injured party for actual harm, even where the

harm is intangible, see Carter v. Duncan - Higgins, Ltd., 727 F.2d 1225

(D.C. Cir. 1984), and should take into account the severity of the harm

and the length of time that the injured party has suffered the harm.

Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652 (July

17, 1995). The Commission notes that for a proper award of nonpecuniary

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. See

Cygnar v. City of Chicago, 865 F. 2d 827, 848 (7th Cir. 1989); EEOC v. AIC

Security Investigations, Ltd., 823 F. Supp. 571, 574 (N.D. Ill. 1993).

Several Commission decisions have awarded compensatory damages in cases

somewhat similar to appellants'. McCann, Virginia A. v. Department

of the Air Force, Appeal No. 01971851 (October 23, 1998)($75,000 in

nonpecuniary damages for a discriminatory discharge where appellant

presented evidence of feelings of psychological numbness, anger, insomnia,

depression, flashbacks, nightmares, fear, fatigue, diminished pleasure

in activities, some social withdrawal, less confidence on the job and a

constant fear of unjustified job loss); Santiago v. Department of the

Army, Appeal No. 01955684 (Oct. 14, 1998) ($125,000 in nonpecuniary

damages where appellant suffered depression and other emotional

and mental disorders, and severe chest and stomach pains, digestive

problems, and incidents of shortness of breath due to three years of

verbal abuse and sex and age-based discrimination by her supervisor);

Hull v Department of Veterans Affairs, Appeal No. 01951441 (Sept. 18,

1998) ($12,000 in nonpecuniary damages where appellant suffered emotional

distress due to his supervisor's reprisal motivated harassment); Turner

v. Department of the Interior, EEOC Appeal Nos. 01956390 and 01960518

(April 27, 1998) ($40,000 in nonpecuniary damages for physical pain,

loss of enjoyment of life and loss of health sustained by appellant

as a result of harassment); Mullins v. United States Postal Service,

EEOC Appeal No. 01954362 (May 22, 1997) ($10,000.00 in nonpecuniary

damages where the evidence established that the appellant's depression

and other emotional and mental disorders were the direct result of sexual

harassment and reprisal); Finlay v. United States Postal Service, EEOC

Appeal No. 01942985 (April 29, 1997) ($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, stomach distress,

and headaches); Wallis v. United States Postal Service, EEOC Appeal

No. 01950510 (November 13, 1995) ($50,000.00 in nonpecuniary damages

for aggravation of pre-existing emotional condition, where effects were

expected to last at least seven years).

In the present case, the record contains evidence from physicians,

family members and friends concerning physical and emotional harm

sustained by appellants as a direct result of the harassment herein

described. Appellant Beaner has received treatment from two psychiatrists

and a psychotherapist, whom diagnosed him with major depression

stemming from the hostile racial environment he experienced at work.

Appellant Beaner testified that as a result of the racial harassment,

he experienced anxiety, embarrassment, weight gain and humiliation,

suffered from depression, high blood pressure, fatigue, sleeplessness,

and forgetfulness, and endured interference with his marriage and other

family relations. His testimony was corroborated by his wife. Appellant

Jackson testified that she initially sought psychiatric help, but after

her initial visit realized that she could not afford continued treatment.

She also testified that as result of the harassment, she experienced

anxiety, embarrassment, weight gain and stress, suffered from depression

and migraines, and endured interference with her marriage and other family

relations. Her testimony was corroborated by her husband and a co-worker.

We agree with the finding of the AJ that the harassment in this case was

the sole cause of appellants' emotional and physical harm. Nevertheless,

given Commission awards in similar cases, the AJ's awards of $50,000 and

$65,000 in nonpecuniary damages were excessive. Appellants' injuries

do not rise to the level of severity meriting a nonpecuniary award of

$50,000 or more. For example, unlike the complainants in Finlay and

Wallis, appellants have not presented sufficient evidence of a long-term

impairment; in fact, three years after the discriminatory incidents both

appellants reported an improvement in their emotional and physical states.

At the hearing, when asked if there had been any improvement in her mental

and physical condition, appellant Jackson testified that, �Yes, yes. The

migraines have improved. They are still there, but they are not as common

as they were.� See Transcript p. 707. She also testified that she had

experienced improvement regarding her weight gain and marital and other

family relations. See Transcript pp. 708-09. Likewise, at the hearing,

when asked about his current condition in particular his sleeplessness,

appellant Beaner testified that, �Oh, it had got better.� He also

testified that he had experience improvement regarding his weight gain

and family relations. See Transcript pp. 802, 803, 857. Additionally,

neither appellant has shown that their injury was as substantial as

that of the complainant in McCann, who relapsed into her previously

diagnosed post traumatic stress disorder after being subjected to

reprisal discrimination.

Still, we agree with the finding of the AJ that the discrimination in

question caused appellants significant pain and suffering. Based on

the foregoing evidence which establishes the emotional and physical

harm sustained by appellants and upon consideration of damage awards

reached in comparable cases, the Commission finds that each appellant

is entitled to award of nonpecuniary damages for their injuries in the

amount of $30,000.00.

Pecuniary Damages

A complainant may recover past out-of-pocket expenses incurred as a

result of the intentional discrimination. EEOC Notice No. N 915.002 at

8. The AJ found and we agree that appellant Jackson failed to present

sufficient evidence concerning pecuniary damages. As for appellant

Beaner, we agree with the AJ's recommendation of $2,151.59 for past and

future medical expenses.<12>

CONCLUSION

Based on a thorough review of the record, and for the foregoing reasons,

it is the decision of the Equal Employment Opportunity Commission to

REVERSE the agency's final decisions.

ORDER

The agency is ORDERED to take the following remedial action:

(A) Within thirty (30) days of the date on which this decision becomes

final, the agency shall tender to appellant Jackson nonpecuniary

compensatory damages in the amount of $30,000.00.

(B) Within thirty (30) days of the date on which this decision becomes

final, the agency shall tender to appellant Beaner nonpecuniary

compensatory damages in the amount of $30,000.00 and pecuniary

compensatory damages in the amount of $2,151.59.

(C) The agency shall provide EEO sensitivity training with special

emphasis on racial discrimination to all employees at the Falls Church

facility within forty-five (45) days of the date on which this decision

becomes final.

(D) The agency shall post the attached Notice in accordance with the

directive below.

(E) 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 evidence that the corrective action

has been taken.

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

appellant. If the agency does not comply with the Commission's order,

appellant may petition the Commission for enforcement of the order.

29 C.F.R. �1614.503 (a). 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, 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 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 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. � 16l4.604(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 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 AND EIGHTY (180) CALENDAR

DAYS of the date you filed your complaint with the agency, or filed your

appeal with the Commission. If you file a civil action, YOU MUST NAME

AS THE DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY

HEAD OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME

AND OFFICIAL TITLE. Failure to do so may result in the dismissal of your

case in court. "Agency" or "department" means the national organization,

and not the local office, facility or department in which you work.

Filing a civil action will terminate the administrative processing of

your complaint.

RIGHT TO REQUEST COUNSEL (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:

April 15, 1999

________________ _______________________________

DATE Frances M. Hart

Executive Officer

1 This decision consolidates appeal numbers 01972555 and 01972556

both filed on February 10, 1997.

2 Appellants' complaints were limited to harassment occurring in 1993.

See Beaner v. United States Postal Service, Appeal No. 01940944 (July

11, 1994).

3 Other co-workers testified that CW1 would repeat Howard Stern jokes

which were racially offensive in nature.

4 A co-worker (Caucasian) testified that she also heard CW1 make this

statement.

5 A co-worker (Caucasian) testified that she heard CW1 make this

statement.

6 Testimony indicated that Merrifield employed mostly Hispanic

individuals.

7 The PM never provided any evidence to substantiate this determination.

8 The PM stated that she gave a service talk in May of 1993 addressing

racism. However, the AJ found that, because of her inconsistent

testimony, the PM was not a credible witness. The AJ also found that

the sexual harassment training, EEO training for EI team, service talks

by the supervisors, and diversity training were unresponsive to the

racial problems reported by appellants. Last, the AJ found that the

PM's disciplinary actions were inadequate given the pervasiveness of

the racial problems at the station.

9 The AJ recommended $65,000.00 of nonpecuniary damages for the outrageous

nature and continuing effects of the discrimination, and $2,151.59 of

pecuniary damages for the out-of-pocket and future medical expenses.

10 The agency also stated that, since it was rejecting the AJ's findings,

the FADs would not address the compensatory damages issue.

11 We distinguish this case from that of Ware v. Department of

Justice, Appeal No. 01963427 (Oct. 30 1998), where we found that two

racially-motivated comments, which were expressed within a two year

period and not made directly to or in the presence of the appellant,

were not sufficiently severe or pervasive to alter the conditions of the

appellant's employment and create a hostile environment. The present

case involves numerous racially-motivated comments which were uttered

within a six month span and in most instances, made directly to or in

the presence of appellants.

12 This amount represents $487.90 for stress management audio and video

tapes, $463.69 for past medical expenses, and $1,200.00 for future medical

expenses which encompasses monthly medical visits for two years at $50.00

per visit.