07A20013
10-02-2003
Judith A. Barbagallo and Nancy J. Yost, Complainants, v. John E. Potter, Postmaster General, United States Postal Service (Eastern Area), Agency.
Judith A. Barbagallo and Nancy J. Yost v. United States Postal Service
07A20012, 07A20013
October 2, 2003
.
Judith A. Barbagallo and Nancy J. Yost,
Complainants,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal Nos. 07A20012, 07A20013
Agency Nos. 4D-280-1094-96, 4D-280-1095-96, 4D-280-1100-96,
4D-280-1104-96, 4D-280-0017-97
Hearing Nos. 140-97-8075X, 140-97-8090X, 140-97-8317X
DECISION
INTRODUCTION
Following its September 10, 2001 final order, the agency filed a timely
appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405.
On appeal, the agency requests that the Commission affirm its rejection of
an EEOC Administrative Judge's (AJ) finding that the agency discriminated
against complainants Barbagallo (C1) and Yost (C2) in retaliation for
their prior protected equal employment opportunity (EEO) activity, in
violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. � 2000e et seq. The agency also requests that the
Commission affirm its rejection of the AJ's remedial order. For the
following reasons, the Commission AFFIRMS the agency's final order in
part, and REVERSES in part.
BACKGROUND
The record reveals the following information pertinent to this appeal.
At all times relevant to the agency actions at issue, complainants were
each employed as Part Time Flexible Distribution Clerks at the Southern
Pines Post Office in Southern Pines, North Carolina. Believing they had
been the victims of unlawful discrimination in violation of Title VII,
complainants each filed separate formal EEO complaints alleging that the
agency had harassed them, and discriminated against them in retaliation
for their prior protected EEO activity, when:
1. On March 1, 1996, their Supervisor (S1) compromised their privacy
by discussing their EEO complaint with another employee;
S1 and the Postmaster (P1) purposely delayed their pay for March 22
and April 5, 1996;
On or about March 21, 1996, P1 left a note in their post office box
reminding them that they were not to be in the building when not on
the clock working, especially on Saturdays and Sundays;
On or about March 27, 1996, P1 refused to complete his portion of their
CA-1 forms;
On April 18 and 19, 1996, they each received a paycheck for $0.00;
On April 18 and 19, 1996, P1 would not accept their phone calls relative
to their receiving no money on their paychecks; and
On April 18, 1996, S1 refused to give them a salary advance.
C2 subsequently filed another formal EEO complaint alleging that the
agency had discriminated against her on the basis of sex (harassment
based upon perceived sexual orientation) and in retaliation for her
prior protected EEO activity when:
On September 20 and 21, 1996, management failed to handle her pay
properly;
On September 20, 1996, her check was not placed in her post office box;
On September 20, 1996, no one was available to answer the caller door
or answer the telephone;
On September 21, 1996, S1 refused to answer the inside phone line and
later refused her phone call;
On September 23, 1996, S1 refused to talk to her after she hung up;
On September 23, 1996, S1 refused her call and another clerk informed
complainant that S1 was unavailable;
On September 23, 1996, a Clerk made a statement twice as to who was
handling complainant's pay issues; and
On September 27, 1996, she received a letter from P1 stating that he
was the only person to whom C2 should direct her written and verbal
correspondence.
At the conclusion of the agency's investigation into the complaints,
complainants were provided copies of the investigative reports, and
requested a hearing before an AJ. Following a hearing, the AJ issued
a decision finding discriminatory retaliation. In that decision, the
AJ first noted that he was granting the agency's motion for partial
dismissal, as the record showed that all of the complainants' harassment
claims were premised upon allegations of discrimination on the basis of
perceived sexual orientation, not gender discrimination.<1> However,
despite this partial dismissal, the AJ then spent the majority of the
�factual background� portion of his decision discussing the treatment
complainants received from their coworkers as a result of those coworkers'
perceptions as to complainants' sexual orientation. This included
discussion of some of the evidence complainants had presented in support
of their claim of damages.
After discussing the �factual background� of the complaints, the AJ
proceeded to analyze the case as one presenting claims of disparate
treatment in retaliation for prior protected EEO activity. The AJ
first found that the complainants had each engaged in protected EEO
activity on February 27, 1996, and that both P1 and S1 became aware of
that activity on March 1, 1996. The AJ also found that complainants
were �immediately thereafter� subjected to �verbal abuse and physical
attacks, in the form of lesbian stories and jokes, a standup talk [by S1]
on disposal of blood and bodily fluids directed at [C1's] bloody nose, and
[C1] being pushed by [a coworker].� The AJ stated that these physical
attacks and verbal abuses were supported by P1 and S1, as they knew of
the incidents but did not do anything to prevent them. The AJ then added
that �[a]dditionally, [P1 and S1] knowingly and deliberately interfered
with the pay of the complainants.� The AJ stated that complainants had
experienced significant pay delays which �caused and perpetuated severe
financial losses.� The AJ further found that the adverse treatment
experienced by complainants occurred less that two weeks after the
filing of their EEO complaints, and that the verbal and physical
abuse escalated to such a degree that complainants were removed from
employment for one week by their physician. Based upon these findings,
the AJ concluded that complainants had established a prima facie case
as to their retaliation claims.
The AJ found that the agency had articulated as its reason for the delay
in complainants' pay that it had installed a new electronic pay system
which caused unintentional errors in the pay of complainants as well as
other employees. The AJ then found that the evidence did not support the
agency's reason. He found that no other employee had as many pay errors
as complainants, and that only complainants were subjected to multiple
incidents of pay errors. The AJ also found that the agency failed to
address �complainants' argument that immediately after they filed their
EEO complaints the agency directly and indirectly encouraged co-workers
to ridicule, and physically and verbally abuse the complainants who were
perceived as lesbians.� The AJ found that the increased intolerance of
complainants was �casually related� to their protected EEO activity.
Turning to whether complainants had established that the agency's
articulated reason was pretextual, the AJ found that the evidence
indicated that �the true reason for the agency's action was to punish
the complainants for filing their EEO complaints against the agency.�
The AJ stated that the retaliation took the form of delayed pay �and
an increased and management supported intolerance of complainants'
perceived sexual orientation.� The AJ added that �delay of pay in a
large postal facility is easily understood, a similar delay in a small
post office with only ten workers is not. In a small postal facility
management should be immediately aware of pay problems.� The AJ further
found that management's attitude toward complainants' sexual orientation
was evidence of pretext, as P1 and S1 �encouraged the lesbian jokes,
stories, and physical attacks by doing nothing to alleviate them� and
that the agency's failure to act in accordance with its policy against
such behavior �strongly supports� that this inaction was the result
of retaliation.
The AJ concluded that complainant had proved by a preponderance of the
evidence that they had been subjected to retaliation �as alleged.�
The AJ then turned to the issue of remedies, and, without making an
express causal finding as to the damages alleged to have been suffered by
complainants as a result of the agency's actions, awarded complainants
back pay from March 3, 1996, forward; restoration (or payment of
its monetary equivalent) of annual and sick leave used from March 3,
1996 through March 2, 1997; and attorney's fees. The AJ also awarded
each individual complainant compensatory damages as follows: for C1,
$100,000.00 for pain and suffering, medical costs of $3,568.68, and
future pecuniary damages not to exceed $196,431.32; for C2, $100,000.00
for pain and suffering, medical costs of $2,234.80, and future pecuniary
damages not to exceed $197,765.20.<2>
The agency subsequently issued its Notice of Final Action/Appeal,
in which it implemented the portion of the AJ's decision which found
no discrimination as to complainants' claims of harassment based upon
perceived sexual orientation, but did not implement the portion of the
decision finding discrimination based upon retaliation. The agency
appealed the latter portion of the AJ's decision to the Commission,
arguing that complainants never complained in their EEO complaints of
management support of general intolerance toward them due to perceived
sexual orientation; that the record does not support the AJ's finding
that the pay delays suffered by complainants were in retaliation for their
prior EEO activity; and that the evidence of record does not support the
AJ's damages award. Complainants respond with arguments in support of
the AJ's decision and remedial order.<3>
ANALYSIS AND FINDINGS
Standard of Review
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Bd., 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
Claims Presented
The AJ found that complainants had been subjected to retaliation for
engaging in protected EEO activity, �as alleged,� in the form of delayed
pay and increased, management supported intolerance of their perceived
sexual orientation. We disagree, however, that the complaints presented
before the AJ included allegations that the agency had retaliated
against complainants in the form of an increased and management-supported
intolerance of complainants' perceived sexual orientation. First, the
claims presented in their respective EEO complaints were as enumerated
above, and made no mention of retaliation in the form of increased
and management-supported intolerance of complainants' perceived sexual
orientation. After complainants filed their formal complaints, they
were each asked by the agency to further explain their complaints,
and the supplementary explanations they provided made no mention of
increased and management-supported intolerance of their perceived sexual
orientation. The agency's identification of the issues to be investigated
paralleled the claims enumerated above, making no mention of increased
and management-supported intolerance of complainants' perceived sexual
orientation, and, when provided the opportunity to challenge the agency's
characterization of the accepted claims, complainants did not do so.
Furthermore, while complainants provided the EEO investigator with
information regarding the perceived sexual orientation based harassment
to which they had been subjected in the workplace, they did not allege
such retaliation or attempt to amend their complaints to include the
claim that they had been subjected to such retaliation. See generally
29 C.F.R. � 1614.106(d) (providing methods by which a complainant may
amend a complaint to include claims like or related to those raised in
the complaint).
In addition, at the beginning of the hearing, while the AJ was stating the
claims presented (as enumerated above), the agency requested clarification
of complainants' harassment allegation regarding claims (1) through (7)
in order �to know . . . what it is we're defending.� The AJ and the
parties then engaged in a discussion to clarify the harassment portion
of those claims, with complainants' attorney asserting the harassment
claim was an allegation of gender based harassment, manifest in a
�hostile work environment based upon peoples' perceptions of their sexual
preference.� The AJ responded that �[w]e have a very straightforward,
well-established law that sexual orientation is not covered by Title VII.�
The AJ further stated that �the sexual orientation issue is a dead issue�
but that �[i]f [complainants] want to give evidence on it, I think that
you will not be using your time wisely.� The AJ then concluded that
�those are our accepted issues.� At no time did the AJ or the parties
identify as a presented claim that the perceived sexual orientation-based
harassment to which complainants were subjected subsequent to their
February, 1996 EEO activity was itself retaliation for engaging in that
EEO activity. Nor did complainants subsequently argue this claim.
Cf. Fed. R. Civ. P. 15(b) (�When issues not raised by the pleadings
are tried by express or implied consent of the parties, they shall be
treated in all respects as if they had been raised in the pleadings.�).
Based upon the foregoing, we find that the allegation that complainants
had been subjected to increased and management-supported intolerance
of their perceived sexual orientation in retaliation for engaging in
protected EEO activity was not a component of the subject complaints,
and was neither presented nor litigated before the AJ. We note that the
agency was at no time placed on notice, either expressly through formal
pleadings or impliedly by introduction of testimonial or other evidence,
that complainants were attempting to present such a retaliation claim,
and therefore to infer that such a claim was presented and litigated,
as the AJ did in his decision, would unfairly deny the agency the
opportunity to defend itself against such a claim. The only retaliation
claims presented and litigated before the AJ were those enumerated above
as claims (1) through (15).
We also note that, even if the allegation of increased and
management-supported intolerance of their perceived sexual orientation
in retaliation for engaging in protected EEO activity had been part of
the subject complaints, the amply developed record does not support the
AJ's finding on that issue. While the AJ found that there was increased
and management-supported intolerance of complainants' perceived sexual
orientation after they engaged in EEO activity in 1996, the record
evidence shows that they had been exposed to this intolerant behavior
prior to their February, 1996, EEO activity, and there is no indication
that the initiation of that EEO activity had any relationship to the
ongoing perceived sexual orientation based harassment complainants allege
they have suffered. In fact, the February, 1996 EEO activity which serves
as the basis for complainant's retaliation claims was itself an attempt
by complainants to raise the issue of perceived sexual orientation based
harassment to an EEO Counselor, and C2 characterized this complaint
in her EEO affidavit as addressing M1's and S1's alleged tolerance
and encouragement of perceived sexual orientation-based harassment in
the workplace. While the Commission does not in any way condone the
perceived sexual orientation based harassing acts alleged to have been
perpetrated by complainants' coworkers and/or supervisors, there is
no evidence that those acts were in any way related to complainants'
actionable retaliation claims.
Retaliation
In claims such as those presented by complainants in their complaints,
which allege disparate treatment based upon retaliation for participation
in the EEO process, and where there is an absence of direct evidence of
such retaliation, the allocation of burdens and order of presentation
of proof is a three-step process. Hochstadt v. Worcester Found. for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass. 1976)
(extending application of the disparate treatment analytical framework
described in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03
(1973), to claims of retaliation), aff'd, 545 F.2d 222 (1st Cir. 1976).
First, complainant must establish a prima facie case of retaliation
by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination; i.e., that a prohibited consideration was
a factor in the adverse employment action. Kimble v. Department of
the Navy, EEOC Appeal No. 01983020 (Aug. 22, 2001). Next, the agency
must articulate a legitimate, nondiscriminatory reason for its actions.
Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
If the agency is successful in meeting its burden, complainant must
prove, by a preponderance of the evidence, that the legitimate reason
proffered by the agency was a pretext for discrimination. Id. at 256.
However, the ultimate burden of persuading the trier of fact that the
agency intentionally discriminated against complainant remains at all
times with complainant. Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 143 (2000).
A complainant may establish a prima facie case of reprisal by showing
that: (1) she engaged in a protected activity; (2) the agency was aware
of her protected activity; (3) subsequently, she was subjected to adverse
treatment by the agency; and (4) a nexus exists between the protected
activity and the adverse treatment. Whitmire v. Department of the Air
Force, EEOC Appeal No. 01A00340 (Sept. 26, 2000). Adverse treatment
need not qualify as �ultimate employment actions� or materially affect
the terms and conditions of employment to constitute retaliation.
Lindsey v. United States Postal Serv., EEOC Request No. 05980410
(Nov. 4, 1999) (citing EEOC Compliance Manual, Section 8, Retaliation
(May 20, 1998)). Instead, the statutory retaliation clauses prohibit
any adverse treatment that is based upon a retaliatory motive and is
reasonably likely to deter the charging party or others from engaging
in protected activity. Id. The nexus may be shown by evidence that
the adverse treatment followed the protected activity within such a
period of time and in such a manner that a reprisal motive is inferred.
Hairston v. United States Postal Serv., EEOC Appeal No. 01A10824 (June
19, 2002) (citing Devereux v. United States Postal Serv., EEOC Request
No. 05960869 (Apr. 24, 1997)).
The AJ found that complainants had been subjected to retaliation
for engaging in protected EEO when the agency delayed their pay,
and that, as to all the other issues raised by complainants, they had
failed to prove retaliation.<4> The substantial evidence of record
supports the AJ's finding of retaliation. First, the record shows that
complainants established a prima facie case of retaliation, as they
engaged in protected EEO activity on February 27, 1996; by March 1, 1996,
both P1 and S1 had been made aware of that activity; complainants were
subsequently subjected to adverse treatment in the form of delays to
their pay; and these pay delays were sufficiently proximate in time to
their protected EEO activity to establish a nexus between the protected
activity and the pay delays. Furthermore, the AJ's finding that the
agency articulated a legitimate, nondiscriminatory reason for the pay
delays�unintentional errors caused by a newly-implemented electronic
payroll system�was supported by substantial evidence in the record.
The AJ's finding that complainants established pretext as to their
claims was also supported by substantial evidence. The record shows
that while the new electronic payroll system was implemented in January
1996, complainants did not experience any problems in their pay until
the first pay period immediately after M1 and S1 became aware of their
EEO activity. The record further shows that S1 manually processed the pay
for complainants, and the AJ found that her animus toward complainants'
EEO activity was apparent from her subsequent threat to sue complainants
for filing EEO complaints against her. Furthermore, while the agency
asserts on appeal that the pay delays were related to complainant's use of
leave during the pay periods in question, and that other employees also
experienced pay delays due to errors caused by use of leave and the new
pay system, no other employee was shown to have experienced the number of
leave-related pay errors to which complainants were subjected. From this,
we conclude that the AJ's finding of pretext is supported by such relevant
evidence as a reasonable mind might accept as adequate to support this
conclusion, and that his ultimate finding of retaliation in the form of
delayed pay is supported by substantial evidence in the record.
Remedies
When, as here, discrimination is found, the agency must provide
complainants with a remedy that constitutes full, make-whole relief
to restore them as nearly as possible to the position they would have
occupied absent the discrimination. Franks v. Bowman Transp. Co., 424
U.S. 747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19
(1975); Adesanya v. United States Postal Serv., EEOC Appeal No. 01933395
(July 21, 1994). Pursuant to section 102(a) of the Civil Rights Act of
1991, a complainant who establishes unlawful intentional discrimination
under Title VII may receive compensatory damages for past and future
pecuniary losses (i.e., out-of-pocket expenses) and non-pecuniary losses
(pain and suffering, mental anguish, etc.) as part of this �make whole�
relief. 42 U.S.C. � 1981a(b)(3). In West v. Gibson, 527 U.S. 212
(1999), the United States Supreme Court held that Congress afforded
the Commission the authority to award compensatory damages in the
administrative process. For an employer with more than 500 employees,
such as the agency, the limit of liability for future pecuniary and
non-pecuniary damages is $300,000. 42 U.S.C. � 1981a(b)(3).
To receive an award of compensatory damages, a complainant must
demonstrate that he or 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 recons. den.,
EEOC Request No. 05940927 (Dec. 11, 1995); Enforcement Guidance:
Compensatory and Punitive Damages Available Under Section 102 of the Civil
Rights Act of 1991 (Enforcement Guidance), EEOC Notice No. 915.002 (July
14, 1992), at 11-12, 14. 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.
Enforcement Guidance at 8. Objective evidence of compensatory damages can
include statements from the complainant concerning his or her emotional
pain or suffering, inconvenience, mental anguish, loss of enjoyment of
life, injury to professional standing, injury to character or reputation,
injury to credit standing, loss of health, and any other nonpecuniary
losses that are incurred as a result of the discriminatory conduct.
Statements from others, including family members, friends, health care
providers, and other counselors could address the outward manifestations
or physical consequences of emotional distress, including sleeplessness,
anxiety, stress, depression, marital strain, humiliation, emotional
distress, loss of self-esteem, excessive fatigue, or a nervous breakdown.
Lawrence v. United States Postal Serv., EEOC Appeal No. 01952288 (Apr. 18,
1996) (citing Carle v. Department of the Navy, EEOC Appeal No. 01922369
(Jan. 5, 1993)).
As discussed above, despite the fact that the AJ failed to make an express
causal finding as to the specific damages suffered by complainants as
a result of the agency's actions, the AJ ordered remedial relief which
included, in addition to other remedies, back pay from March 3, 1996,
forward; restoration (or payment of its monetary equivalent) of annual
and sick leave used from March 3, 1996 through March 2, 1997; attorney's
fees; and compensatory damages in the amount of $300,000.00 each.<5> We
do not agree, however, that the record supports that award. Our review
of the evidence pertaining to complainants' damages claim reveals that
they have provided no indication of what harm they suffered, if any,
as a result of the agency's retaliatory delay of their pay. The record
evidence includes statements from complainants' physicians which indicate
that they have suffered significant emotional harm, and that this harm
has led to their being unable to return to the workplace. However, one
of the physicians stated that the harm caused to complainants was the
result of mistreatment . . . due to [their] alleged sexual preferences,�
and the other only indicated that they suffered depression and post
traumatic stress disorder after employment at the agency. While the
medical evidence points to the alleged perceived sexual orientation based
harassment as the cause of complainant's medical ailments, there is no
indication that the medical harm suffered was in any way caused by the
agency's retaliatory delay of their pay.
Furthermore, while complainants presented testimonial and other evidence
as to the extent of their pecuniary losses, past and future, this evidence
shows that these alleged damages accrued not as a result of the agency's
retaliatory delays of their pay, but rather as a consequence of their
taking leave from their employment at the agency in mid-March 1996,
in response to the perceived sexual orientation based harassment to
which they alleged to have been subjected, and never returning to
employment with the agency. Simply, while complainants are entitled
to make-whole relief for any harm suffered by the agency as a result of
its unlawful retaliatory conduct, there is no evidence which links the
agency's unlawful retaliatory conduct with any of the compensatory damages
awarded by the AJ. Accordingly, we conclude that the AJ's award of back
pay, leave restoration, pain and suffering compensation, medical costs,
and future pecuniary damages is not supported by substantial evidence
of record.
Conclusion
For the aforementioned reasons, and after a careful review of the record,
including the agency's contentions on appeal, complainants' response,
and arguments and evidence not specifically discussed in this decision,
it is the decision of the Commission to AFFIRM the agency's final order
in part, REVERSE in part, and REMAND the matter to the agency to take
corrective action in accordance with this decision and the Order below.
ORDER (C0900)
The agency is ordered to take the following remedial action:
No later than sixty (60) calendar days after the date this decision
becomes final, the agency shall provide complainants make-whole relief
for the delays in pay they suffered in 1996, in the form of interest
compounded from the dates of the agency's unlawful conduct through the
date of payment to complainants of such interest by the agency.
The agency shall post a notice, as provided below.
No later than sixty (60) calendar days after the date this decision
becomes final, the agency shall provide training to the responsible
management official on the requirements of Title VII, including but not
limited to the rights of federal employees and federal applicants under
Title VII, the obligations of management and personnel staff to insure
that those rights are protected, and the possible relief available
to such employees or applicants should the agency act in violation of
Title VII.
No later than sixty (60) calendar days after the date this decision
becomes final, the agency shall consider taking disciplinary action
against the responsible management officials identified as being
responsible for the discrimination perpetrated against complainants.
The agency shall report its decision to the Commission. If the agency
decides to take disciplinary action, it shall identify the action taken.
If the agency decides not to take disciplinary action, it shall set
forth the reason(s) for its decision not to impose discipline.
No later than sixty (60) calendar days after the date this decision
becomes final, the agency shall pay complainants attorney's fees and
costs in the amount of $16,289.83 each per complainant, plus interest
calculated from forty (40) calendar days after the date the agency
received the AJ's July 23, 2001, decision. Complainants, through
counsel, shall also submit a request for attorney's fees and costs
incurred in connection with the pursuit of this appeal, relative to
their successful retaliation claims, in accordance with the Attorney's
Fees paragraph set forth below. No later than sixty (60) calendar days
after the agency's receipt of the attorney's fees and costs petition,
the agency shall issue a final agency decision addressing the issues
of attorney's fees and costs incurred by complainants in the pursuit
of this appeal. The agency shall submit a copy of the final decision
to the Compliance Officer, as referenced below.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled �Implementation of the Commission's
Decision.� The report shall include supporting documentation verifying
that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Southern Pines, North Carolina
facility copies of the attached notice. Copies of the notice, after
being signed by the agency's duly authorized representative, shall
be posted by the agency within thirty (30) calendar days of the date
this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled �Implementation of the Commission's Decision,� within ten (10)
calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0900)
If complainants have been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), they are 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 (K0501)
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. 29 C.F.R. ��
1614.407, 1614.408, 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, 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) (1994 & Supp. IV 1999). If the complainant files
a civil action, the administrative processing of the complaint, including
any petition for enforcement, will be terminated. 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. �Agency� or �department� means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
October 2, 2003
Date
1 The Commission has held that Title VII's prohibition of sexual
harassment does not apply to cases which raise issues regarding an
individual's perceived sexual preference or orientation, and that
such claims are beyond our jurisdiction. Paris v. Department of
Veterans Affairs, EEOC Appeal No. 01953377 (Nov. 13, 1997); Morrison
v. Department of the Navy, EEOC Request No. 05930964 (June 16, 1994).
We note, however, that claims of sexual orientation discrimination taking
the form of prohibited personnel practices may be presented to the United
States Office of Special Counsel (http://www.osc.gov) for investigation
and possible prosecution. Accordingly, the Commission will exercise
its discretion to refer those claims to the Office of Special Counsel
for investigation and possible prosecution.
2 The AJ determined the amount of future pecuniary damages by subtracting
each complainant's pain and suffering award and medical costs from Title
VII's $300,000.00 cap on damages.
3 Complainants have not challenged on appeal the AJ's dismissal of the
harassment component of their complaints.
4 While the AJ failed to more specifically identify the enumerated claims
which complainants proved, we find that the AJ's finding of retaliation
in the form of delayed pay pertained specifically to claims (2), (5),
(7), and (8). As complainants have not raised a challenge to the AJ's
finding of no retaliation as to the remaining claims, we will not address
that finding further on appeal.
5 Again, as neither party has contested the AJ's award of attorney's
fees in this matter, the Commission will not address or disturb that
award in this appeal.