Judith A. Barbagallo and Nancy J. Yost, Complainants,v.John E. Potter, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity CommissionOct 2, 2003
07A20012 (E.E.O.C. Oct. 2, 2003)

07A20012

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.