01971511
08-10-2000
Eugenia A. Williams, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Eugenia A. Williams v. Department of Agriculture
01971511
August 10, 2000
Eugenia A. Williams, )
Complainant, )
)
v. )
) Appeal No. 01971511
Daniel R. Glickman, ) Agency Nos. 93-1012
Secretary, ) 93-1129
Department of Agriculture, )
Agency. )
______________________________)
DECISION
On December 10, 1996, complainant, by facsimile, filed an appeal from
the agency's final decision concerning the amount of compensatory
damages to which she was entitled.<1> The appeal is deemed timely (see
29 C.F.R. � 1614.401(e) and 64 Fed. Reg. 37,644, 37,660 (1999) (to be
codified and hereinafter referred to as 29 C.F.R. � 1614. 504(a) and
(b))), and is accepted in accordance with 64 Fed. Reg. 37,644, 37,659
(1999) (to be codified at 29 C.F.R. � 1614.405).
The issue presented is whether the agency's November 8, 1996 decision
to award complainant $2,000.00 in compensatory damages constitutes full,
"make whole" relief.
The complainant filed two complaints against the agency on October 12,
1993 (Case No. 93-1012) and on November 29, 1993 (Case No. 93-1129).
The cases were consolidated and the following issues were accepted
for investigation: whether complainant was discriminated against,
on the bases of race (Black), physical disability (none provided), and
reprisal (previous EEO activity), with respect to: (1) Element No. 4
on her performance appraisal for FY 1992, received on June 9, 1993;
(2) a 14-day suspension, which was effective August 8, 1993; and (3)
her claim that she was harassed with respect to her working conditions
from June 1, 1993, regarding time and attendance matters, i.e., leave
requests, the pay period 17 leave charges, her compensatory time request
for October 8, 1993, and the comments which were on placed on her time
and attendance records.
On April 15, 1994, the parties entered into a resolution agreement
(agreement). The agreement stated that it constituted the �full,
complete, and final settlement� of complainant's cases. The agency,
without admitting �[d]iscrimination, wrongdoing, misconduct, or
liability,� agreed to:
1) change 10 hours of annual leave taken in pay period #17 to sick
leave and advance to the complainant any necessary hours to cover the
10 hours of sick leave;
2) grant the complainant 1 hour of compensatory time for hours worked
on October 8, 1993;
3) cancel the 14-day suspension of August 8 - 21, 1993, and restore
back pay and benefits during the aforementioned suspension period;
4) expunge the complainant's official personnel folder of any material
relating to the suspension mentioned in item #3, above;
5) change performance element #4 (assembles and processes branch time
and attendance) to exceeds for the FY-92 rating period.
6) reassign the complainant outside of the Agency effective April 17,
1994, and reimburse the hiring Agency for salary and benefits through
COB FY-94;
7) remove additional remarks on official records copy from the
Complainant's time and attendance file for 1993 pay periods 12 through
19; and
8) pay proven compensatory damages.
On July 26, 1994, the complainant submitted written material to support
her claim for compensatory damages. She claimed past pecuniary losses and
nonpecuniary losses. With respect to past pecuniary losses, she sought:
(a) $11,532.00 for 1,098 hours of annual leave used between 1990 and
1994; (b) $1,502.00 for transportation to medical providers between 1990
and 1995; (c) $3,425.00 for loans and upkeep of her daughter in 1993 and
1994; and (d) $1,380.00 for hair damage in 1993 and 1994. With respect
to nonpecuniary damages, the complainant sought $4,510,000.00.
Although, at one time, there was a dispute as to whether the agency had
complied with the terms of the agreement, the only matter before the
Commission is the amount of compensatory relief to which the complainant
is entitled. According to the agency, it denied liability for the
damages requested by the complainant on November 22, 1994. The agency
did not, however, explain why it then took almost two additional years,
November 11, 1996, to issue its final determination of the amount that
the complainant was entitled to in compensatory relief. As noted above,
the agency, in November 1996, concluded that she was only entitled to
$2,000.00. We will address the specifics of the complainant's claims
and the agency's response below.
Compensatory Damages
a. Legal Standards for an Award of Compensatory Damages
Section 102(a) of the Civil Rights Act of 1991, 105 Stat. 1071,
Pub. L. No. 102-166, codified as 42 U.S.C. � 1981a, authorizes an award
of compensatory damages as part of the "make whole" relief for intentional
discrimination in violation of Title VII of the Civil Rights Act of 1964,
as amended, and � 501 of the Rehabilitation Act of 1973, as amended.
Section 1981a(b)(3) limits the total amount of compensatory damages
that may be awarded to each complaining party for future pecuniary
losses, emotional pain, suffering, inconvenience, mental anguish, loss
of enjoyment of life, and other non-pecuniary losses, according to the
number of persons employed by the respondent employer. The limit for an
employer with more than 500 employees, such as the agency, is $300,000.00.
42 U.S.C. � 1981a (b)(3)(D).
Compensatory damages may be awarded for the past pecuniary losses,
future pecuniary losses, and non-pecuniary losses which are directly or
proximately caused by the agency's discriminatory conduct. Compensatory
and Punitive Damages Available Under Section 102 of the Civil Rights
Act of 1991, EEOC Notice No. N-915.002 (July 14, 1992), at 8. Pecuniary
losses are out-of-pocket expenses that are incurred as a result of the
employer's unlawful action, including job-hunting expenses, moving
expenses, and other quantifiable out-of-pocket expenses. Id. Past
pecuniary losses are the pecuniary losses that are incurred prior
to the resolution of a complaint via a finding of discrimination, an
offer of full relief, or a voluntary settlement. Id. at 8-9. Future
pecuniary losses are losses that are likely to occur after resolution
of a complaint. Id. at 9. Non-pecuniary losses are emotional pain,
suffering, inconvenience, mental anguish, loss of enjoyment of life,
injury to professional standing, injury to character and reputation,
injury to credit standing, and loss of health. Id.
A compensatory damages award should fully compensate a complainant for
the harm caused by the agency's discriminatory action even if the harm
is intangible. Id. at 13. There are no precise formulae for determining
the amount of damages payable for non-pecuniary losses. Damage awards for
non-pecuniary losses that have been assessed by juries and courts have
varied substantially from one another. Id. at 13. However, an award of
compensatory damages for non-pecuniary losses, including emotional harm,
should reflect the extent to which the respondent's discriminatory action
directly or proximately caused the harm and the extent to which other
factors also caused the harm. Id. at 11-12. An award of compensatory
damages for non-pecuniary losses should also reflect the nature and
severity of the harm and the duration or expected duration of the harm.
Id. at 14.
Finally, pursuant to the decision of the U.S. Supreme Court in
Landgraf v. USI Film Products, 511 U.S. 244 (1994), the compensatory
damages provision of the Civil Rights Act (CRA) of 1991 may not
be retroactively applied to conduct that occurred before November
21, 1991, the effective date of the Act. Thus, complainant cannot
receive compensatory damages with respect to matters that arose before
November 21, 1991. A complainant is entitled to reimbursement for all
pecuniary and nonpecuniary losses incurred as a result of the post-CRA
discrimination.
B. Complainant's Evidence of Injury and Causation
According to the complainant, she began being harassed in June 1990, when
her work hours were changed and she was penalized for things that she
had not done. After June 1991, the complainant stated that management's
harassment of her increased. She attributed this to her having contacted
an EEO counselor. During the period of June 1990 through November 21,
1991, complainant indicated that she incurred several stress related
problems, i.e., losing a child due to a premature delivery, problems
with her GI system, stomach pains, upset stomach, diarrhea, nervousness,
being tense, excitability, and disorientation.
On January 13, 1992, she was told to contact an agency official at 8:00
a.m., regarding her whereabouts, arrival, and departure time, unless she
was unconscious. According to the complainant, this comment caused her
to shake, her stomach began to move, her heart began to beat faster,
and she �felt as though [she] was being suffocated.� In April 1992,
she again prematurely delivered a child that, complainant maintained,
did not survive due to her �stressful work environment.� The complainant
soon became pregnant a third time. She stated, however, that she was
unable to take the medication that was prescribed to her in order to deal
with the effects of the harassment that she was allegedly subjected to
between May and September 1992. Subsequently, she was accused of being
AWOL, abusing leave, and falsifying official records with respect to
time and attendance. She was also informed by management that, in the
future, one of her supervisors had to watch her fill out her time and
attendance records. Complainant stated that this procedure was degrading
and made her feel uncomfortable.
In October 1992, complainant indicated that she was placed on strict
bed-rest and was only allowed to go to the bathroom and eat meals.
Despite being on bed-rest, complainant maintained that agency officials
continued to harass her by sending her disturbing letters and making phone
calls that she found both threatening and intimidating. According to
complainant, she began to hemorrhage and �on December 25, 1992, once again
my membranes ruptured prematurely causing me to be hospitalized.� The
complainant's niece had to watch her daughter during the holiday period.
On December 31, an emergency cesarean section was performed on the
complainant. Although she delivered a son, he did not survive.
Between January and February 1993, she was hospitalized for severe chest
pains, shortness of breath, and back pains after she discovered that
her job had been promised to a co-worker. Between March and May 1993,
complainant maintained that her working conditions caused her to suffer
stomach, back, and chest pains. Between June and August 1993, as a result
of receiving a proposed suspension, she stated that she suffered chest
pains, irregular breathing, and hair breakage due to stress. She also
stated that her niece had to take care of her daughter throughout the
Summer of 1993.
Between September and December 1993, she stated that she consulted with a
psychiatrist for treatment of stress. During a meeting with an agency
official on December 15, 1993, complainant stated she was told that
the agency was justified in suspending her and that if she continued
making accusations, she would be subjected to disciplinary actions.
In addition, she was told that she would not be detailed out of the
agency. Complainant maintained that she felt �completely helpless.� She
went to the nurse's office to lie down. While there, she became nervous
and began having severe chest pains along with shortness of breath.
On December 16 and 17, 1993, she had to go to the emergency room.
In January 1994, complainant was detailed to another agency; however,
she maintains that she was still harassed by her former management chain
with respect to leave usage and time and attendance matters. On May 3,
1994, she underwent gall bladder surgery, which she also attributed
to management's constant harassment. On or around June 22, 1994, she
received a letter concerning proving compensatory damages. According to
the complainant, she had to �re-live the past 4 years of unpleasantness.�
On July 5, 1994, complainant was institutionalized for depression.
Complainant's niece, C-1, provided a statement indicating, among other
things, that she noticed a change in the complainant's behavior around
January 1991, when she was told, by complainant, about her problems
at work. According to C-1, complainant began �regressing when she
inform[ed] me that her supervisor was constantly harassing her about leave
and other issues.� In September 1993, C-1 indicated that complainant
borrowed $700.00 from her, after she was suspended from work without pay.
C-1 indicated that complainant told her that people had become �extremely
rude to her which upset her condition, causing her to take a lot [sic]
of medication just to make it through the day.� Complainant, she stated,
also took medication at night to help her sleep because of nightmares.
According to C-1:
[i]t takes her a long time to make decisions. I think this is due to
the medication that she is taking to help her deal with the stressful
work environment that she was in. And now, [complainant] is petrified
that she will lose her present job because she was hospitalized in May
1994 and just found out that she needs to be hospitalized again but this
time on a psychiatric ward. After her session with her psychiatrist on
June 24, 1994, [complainant] became very ill. She was unable to keep
anything on her stomach for several days. She had diarrhea, stomach
pains, nausea, trembling spells, anxious, just a nervous wreck.
C-1 concludes by stating that �I have been helping her take care of
daughter, [C-2], for over a year now.�
C-3, the complainant's sister, indicated that she noticed a �dramatic�
change in complainant's behavior since June 1992.� C-3 maintained
that �it is as though she hated to go to work because it was [a] very
unpleasant place to spend most of her day. She always seemed like she
[was] preoccupied and tense.� C-3 also indicated that the complainant
was, at times, withdrawn from her family and acted as though something
was troubling her. Finally, C-3 indicated that complainant's daughter
�[h]as been staying with our niece, C-1, since June 1993, because
[complainant] has been taking a lot [sic] of medication for her condition
which interferes with her emotional and physical state.�
Complainant's hair stylist indicated, among other things, that in late
July 1993, she noticed that complainant's hair was beginning to �break
off.� According to her, the complainant told her that she was taking
daily medication and was under a tremendous amount of stress from
her job. The complainant, she stated, came in for weekly treatments
for her condition. The record contains numerous copies of receipts
pertaining to complainant's hair treatments.
Complainant's daughter stated that �[d]uring the school year of 1993, I
was kept up at night while my mother would be in the living room crying
over the things that happened to her at work that day or the days or
weeks before.� Complainant's daughter further indicated that �I had to
stay with either my aunt or my cousin because I was unable to live with
my mother. Every morning when she would go to work, I was scared for
her safety.�
On February 28, 1995, Doctor J, a psychiatrist, wrote that �[complainant]
has been undergoing weekly psychotherapy since August 1994, after being
hospitalized for major depression.� He also indicated that she has
displayed, at various times, symptoms of post traumatic stress disorder,
major depression, and paranoia. He listed concerns such as recurring
nightmares regarding threats and harassment on her previous job, insomnia,
flashbacks of being threatened and intimidated on her previous job,
nervousness, impaired concentration, periods of sadness, feelings of
emptiness, and anxiety with a sensation of being unfairly persecuted.
According to Doctor J, �complainant will require continuing psychotherapy
for an indefinite period of time to address the above symptoms and other
areas of concern. As she was previously psychiatrically healthy, her
symptoms appear to emanate solely from work-related concerns.�
1. Past Pecuniary Losses
(a). With respect to complainant's claim for $11,632.00 for leave
that she used between 1990 and 1994, we find that this is a claim for
equitable relief not for compensatory damages, and is therefore beyond
the scope of the agreement. Hogeland v. Department of Agriculture,
EEOC Appeal No. 01976440 (June 14, 1999); McGowan-Butler v. Department
of the Treasury, EEOC Request No. 05940636 (September 9, 1994).
(b). With respect to complainant's claim for $1,502.00 for transportation
to medical providers, the agency denied this claim because the complainant
did not submit documentation relating to these expenses. We agree.
Complainant has the burden of establishing her entitlement, if any,
to the amounts she requested.
(c). With respect to the complainant's claim that she borrowed
$3,425.00 in loans and upkeep of a her daughter in 1993 and 1994,
the agency denied this claim because the complainant did not submit
documentation to support her claim. We find that, with the exception of
the $700.00 that she borrowed from her niece, C-1, the complainant did
not submit documentation relating to the expenses she incurred in order
to care for her daughter. Complainant, after she was suspended from work
without pay, provided sufficient documentation that she borrowed $700.00
from her niece. Her 14-day suspension was one of the matters that was
raised in her formal complaints and which was resolved by the agreement.
Therefore, we find that this is a matter for which the complainant should
be reimbursed.<2>
(d). With respect to complainant's claim for $1,380.00 for damage to her
hair from July 24, 1993 through July 15, 1994, the agency found that,
notwithstanding the receipts and opinion letter from the complainant's
hair stylist, the complainant presented no proof of causation.
According to the agency, �[c]omplainant presented no credible proof
that the conditions at work were the direct and proximate cause of her
hair damage. A beautician is not a physician. A beautician's opinion
regarding the cause of the complainant's hair damage is pure speculation
based entirely upon her conversations with the complainant.� We agree
with the denial of complainant's claim. There is insufficient evidence
to establish a causal relationship between complainant's hair loss and the
agency's actions. We find no persuasive evidence to support the assertion
that the complainant's medication caused the damage to her hair.
2. Future Pecuniary Losses
Like the agency, we find that complainant is not entitled to future
pecuniary damages. Although complainant presented evidence that she
would �[r]equire continuing psychotherapy for an indefinite period of
time,� the agency correctly noted that she did not provide specific
detailed documentation of the nature, extent and likely duration of
these visits.
3. Non-pecuniary Losses
As previously noted, the complainant sought $4,510,000.00 for
non-pecuniary damages; however, the agency awarded her $2,000.00. We find
that the record supports the complainant's claim for non-pecuniary damages
resulting from her claim that she underwent harassment from management
officials concerning time and attendance matters. We note, however, that
the agency's period of liability for compensatory damages is limited to
June 1, 1993 until April 15, 1994. We note in this regard that the issues
accepted by the agency and subsequently settled by the parties encompass
this time period. It is a Commission goal to make damage awards for
emotional harm consistent with awards in similar cases. In Carpenter,
EEOC Appeal No. 01945652 (July 17, 1995), the Commission awarded $75,000
for non-pecuniary damages in order to compensate the complainant for the
deterioration of her medical and emotional condition. According to the
complainant, in Carpenter, the agency's actions resulted in her seeking
disability retirement, because of an aggravation of her asthma, panic
attacks, insomnia, digestive problems, loss of spirit, social withdrawal,
feelings of hostility, irritability, and a loss of libido.
In Finlay v. United States Postal Service, EEOC Appeal No. 01942985
(April 29, 1997), the Commission awarded $100,000 in non-pecuniary
damages in order to compensate the complainant for severe psychological
injuries over four years. The complainant's condition, which was
expected to continue for an indeterminate period of time, 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.
In Santiago v. Department of the Army, EEOC Appeal No. 01955684 (October
14, 1998), the Commission awarded $125,000 in non-pecuniary damages
for emotional distress, i.e., depression, anxiety, paranoia, confusion,
moodiness, insomnia, social withdrawal, tearfulness, fatigue, loss of
libido, loss of self-esteem, chest and stomach pains, digestive problems,
and incidents of shortness of breath. The complainant repeatedly
sought medical treatment for her problems, including an invasive
diagnostic procedure, after she was removed in 1993. The duration of
the complainant's emotional and psychological distress and physical
illness was found to be from November 21, 1991 to the date complainant
was removed, on February 12, 1993.
In Chow v. Department of the Army, EEOC Appeal No. 01981308 (August 5,
1999), the Commission awarded $100,000.00 to a female employee who had
been subjected to sexual harassment from her supervisor. According to the
record, in March 1993, he began making comments of a sexual nature to her.
After she rejected his advances, his demeanor toward her became hostile.
In Chow, the complainant became upset, nervous and began experiencing
abdominal pains, chest pains and headaches. She also experienced
difficulty breathing and sleeping due to nightmares, and gained weight and
began losing her hair. She testified that she became so depressed that
she did not want to socialize with others, stopped jogging, walking her
dog, and eventually ended her relationship with her boyfriend. In August
1993, she began seeing a psychologist two to three times a month and
was subsequently placed on anti-anxiety medication and anti-depressant
medication. She saw the psychologist approximately 3 to 3 � years.
Having carefully considered the facts of this case, the Commission finds
that, in light of the fact that the agency's period of liability is
limited to June 1, 1993 until April 15, 1994, complainant is entitled to
non-pecuniary damages in a total amount of $50,000.00. The Commission
finds that the amount of this award is motivated by neither passion
nor prejudice; is not "monstrously excessive" standing alone; and is
not inconsistent with amounts awarded in similar cases. See Cygnar
v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989); and EEOC v. AIC
Security Investigations, Ltd., 823 F.Supp. 573, 574 (N.D.Ill. 1993).
Complainant, therefore, is entitled to an additional $48,000.00 in
non-pecuniary damages.
In reaching the above amount, the Commission has considered many factors.
For example, we considered the severity of the hostile environment that
complainant was subjected to during the eleven months at issue. We also
considered the nature, severity, and duration of complainant's emotional
distress and related symptoms. During the period at issue, complainant,
on several occasions, suffered chest pains, irregular breathing, and
was unable to care for her daughter throughout the Summer of 1993.
She also had to consult with a psychiatrist for treatment of stress
and, on December 16 and 17, 1993, she had to go to the emergency room.
Her family members also outlined the distress that she underwent during
the period. As noted above, complainant's psychiatrist found that she
suffered from post traumatic stress disorder, major depression, and
paranoia, which he found was related to the harassment she was subjected
to.
Unlike the agency, we also find that the plain meaning of the agreement,
that the agency would
pay �proven compensatory damages,� allows for the payment of future
non-pecuniary damages, i.e., those that arose after the agreement was
signed but which are shown to be related to the matters addressed in
the complaints.<3> Thus, our total award of $50,000.00 reflects Doctor
J's statement that complainant would, for an indefinite period of time,
have recurring nightmares, insomnia, flashbacks, nervousness, impaired
concentration, periods of sadness, feelings of emptiness, anxiety,
and a sensation of being unfairly persecuted.
Accordingly, the agency's FAD is Modified.
ORDER
The agency is ordered to take the following remedial actions:
1. Within sixty (60) calendar days of the date this decision becomes
final, the agency, if it has already paid complainant the $2000.00
referenced in the FAD, shall issue her a check for $48,700.00 for proven
compensatory damages. If the agency has not already paid complainant
the $2000.00 referenced in the FAD, then it shall issue her a check for
$50,700.00.
2. The issue of attorney's fees and costs are REMANDED to the agency.
Complainant, through counsel, shall submit a request for attorney's
fees and costs in accordance with the Attorney's Fees paragraph set
forth below. No later than sixty (60) days after the agency's receipt of
the attorney's fees statement and supporting affidavit, the agency shall
issue a final agency decision addressing the issues of attorney's fees,
and costs. The agency shall submit a copy of the final decision to the
Compliance Officer at the address set forth below.
3. The agency shall submit copies of checks for compensatory damages
and attorney's fees, and the agency's determination on attorney's fees,
to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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
complainant. If the agency does not comply with the Commission's order,
the complainant may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). The complainant also has the right to file a
civil action to enforce compliance with the Commission's order prior
to or following an administrative petition for enforcement. See 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �
1614.503(g). Alternatively, the complainant has the right to file a
civil action on the underlying complaint in accordance with the paragraph
below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407
and 1614.408. A civil action for enforcement or a civil action on the
underlying complaint is subject to the deadline stated in 42 U.S.C. �
2000e-16(c)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
ATTORNEY'S FEES (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to
an award of reasonable attorney's fees incurred in the processing of the
complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall
be paid by the agency. The attorney shall submit a verified statement of
fees to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, MUST BE FILED
WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR
DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS OF
RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.405); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.604). The request or opposition must
also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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 WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. 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 (Z1199)
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:
__08-10-00_______ __________________________________
DATE Carlton M. Hadden, Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________________ _________________________________
DATE
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2The agency denied the complainant's request to be reimbursed for the
$700.00 she borrowed from C-1 because C-1 did not state that the loan
was related to the upkeep of complainant's daughter. We find, however,
that even if the complainant did not establish that the $700.00 loan
was related to the upkeep of her daughter, the record is clear that
complainant incurred this expense as a result of her unpaid 14-day
suspension. Therefore, we find it is appropriate to reimburse her.
3In ascertaining the intent of the parties with regard to the terms
of a settlement agreement, the Commission has generally relied on the
plain meaning rule. See Hyon O v. United States Postal Service, EEOC
Request No. 05910787 (December 2, 1991). This rule states that if the
writing appears to be plain and unambiguous on its face, its meaning
must be determined from the four corners of the instrument without any
resort to extrinsic evidence of any nature. See Montgomery Elevator
v. Building Engineering Services, 730 F.2d 377 (5th Cir. 1984).