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.