01976440
06-14-1999
Julie Hogeland, Appellant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Julie Hogeland v. Department of Agriculture
01976440
June 14, 1999
Julie Hogeland, )
Appellant, )
)
v. ) Appeal No. 01976440
) Agency Nos. 92-1222
Daniel R. Glickman, ) 94-0404
Secretary, )
Department of Agriculture, )
Agency. )
___________________________________)
DECISION
INTRODUCTION
Appellant filed an appeal with the Commission from a final decision of the
agency concerning its award of compensatory damages, issued in accordance
with a settlement agreement entered into by the parties in May 1994,
concerning alleged violations of Title VII of the Civil Rights Act of
1964, 42 U.S.C. � 2000e et seq; and Section 501 of the Rehabilitation
Act of 1973, 29 U.S.C. � 791. Appellant received the final agency's
decision on July 25, 1997, and filed her appeal on August 22, 1997,
as evidenced by the postmark. Accordingly, the appeal is timely and
is accepted in accordance with EEOC Order No. 960, as amended. See 29
C.F.R. � 1614.402(a).
ISSUE PRESENTED
Whether the agency properly awarded appellant $3,000 in compensatory
damages and $5,000 in attorney's fees, pursuant to the terms of a
settlement agreement that it entered into with appellant on May 11,
1994.
BACKGROUND
The agency employed appellant as an agricultural economist in its Rural
Business Cooperative Service, formerly the Agricultural Cooperative
Service. In November 1992, appellant filed a complaint in which she
alleged that the agency discriminated against her on the bases of sex
and disability (depression, headache disorder, and endometriosis) by:
failing to provide her with a reasonable accommodation; giving her
a low performance evaluation for fiscal year 1992; and treating her
differently than other agricultural economists, in terms of leave, work
assignments, and travel. The agency accepted the complaint and assigned
it the number 92-1222. As will be discussed in greater detail below,
the agency accommodated appellant's medical conditions by allowing her
to take leave without pay (LWOP) every Wednesday. The record indicates
that the agency withdrew this LWOP accommodation on September 23, 1992,
and reinstated it in June or July 1993.
Appellant filed a second complaint in February 1994. She alleged that
the agency discriminated against her on the bases of sex and reprisal
when management failed to approve work-related travel, and had verbally
harassed her beginning in January 1994. The agency assigned this
complaint the number 94-0404.
On May 11, 1994, appellant and the agency entered into an agreement
to settle complaints 92-1222 and 94-0404. The first four terms of
the agreement provided that appellant would be reassigned to another
supervisor, that the agency would work with appellant in accommodating her
disability, that she would be assigned duties related to an artificial
insemination project, and that she would be authorized to travel to
perform official duties regarding projects related to a cooperative
hog study. The fifth and sixth terms of the agreement provided for the
payment of attorney's fees not to exceed $5,000 and proven compensatory
damages, respectively.
On June 13, 1994, appellant filed a claim for $300,000 in compensatory
damages, representing the maximum award allowable by law. Her claim
was broken down as follows:
$4,961.94, for out-of-pocket medical expenses;
$12,821.89, for reimbursement of annual leave, sick leave, and leave
without pay (LWOP) that appellant had to use as a result of the medical
complications that she experienced;
$17,747 for additional attorney's fees, above the $5,000 in fees that
had already been paid pursuant to the settlement agreement;
$31,500 as accrued interest on the $300,000 for the two-year period
since the date of the settlement agreement.
$282,216.17 for pain and suffering, damages for her loss of child-bearing,
"life-threatening" medical complications, and damage to professional
reputation and character.
On June 30, 1997, the agency issued its final decision. It awarded
appellant $3,000 in nonpecuniary damages for pain and suffering, plus
interest. The agency also awarded appellant $5,000 in attorney's fees,
as provided for in the settlement agreement.
Appellant had been suffering from three medical conditions: depression;
chronic headache disorder; and endometriosis. She began to experience
tension and migraine headaches on a regular basis in 1980, with the
condition becoming chronic in 1985. Her depression began in 1984
and became more severe in 1986. In 1990, she was diagnosed with
endometriosis. She was given a variety of medications to control
her symptoms. Appellant's Affidavit (Aff.) �� 4-7. Her endometriosis
worsened between 1990 and September 1992. IEx. B2. Between 1988 and
1993, she received numerous prescription medications to control the
symptoms associated with her conditions. The agency accommodated her
by allowing her to take leave without pay (LWOP) every Wednesday between
1986 and September 1992.<1> Appellant stated that, as a result of being
able to take leave without pay, she was able to rest during the middle
of the work week, manage stress, and control her symptoms to the point
where she could function in her job. Aff. �� 7-9;IEx. C2a.
Appellant states in her affidavit that her supervisor's withdrawal of her
LWOP accommodation in early Fall, 1992, in conjunction with her receipt
of a low performance appraisal for 1992 and the supervisor's subsequent
refusal to reinstate her LWOP accommodation, caused her to experience
such severe stress that she was forced to undergo a major operation, that
she had become addicted to medications to the point where her life was
endangered, and that her professional reputation was severely harmed.
Appellant's first psychiatrist stated unequivocally that the supervisor's
decision to rescind her ability to take one day of LWOP during the week,
and his subsequent refusal to reinstate her accommodation, were the
major aggravating factors that contributed to her deterioration in the
Fall of 1992. IEx. C2a, pp. 3, 5-6. The psychiatrist reported that,
by December 1992, appellant had dramatically increased her usage of
medication as a means of coping with the pressures at work. He also
reported that appellant underwent a major operation in January 1993.
IEx. C2a, p. 4, � 1. He noted that appellant's return to work in a
fatigued, post-operative state added greatly to her stress. He reported
that appellant's usage of medications had not subsided. He noted that
appellant's supervisor still had not reinstated her LWOP accommodation,
and that appellant had been taking an antidepressant well above the
recommended dosage. In addition, he noted that, by March 1993, appellant
could no longer engage in weekend recreational activities. Finally,
the psychiatrist reported that it was the ongoing stress that appellant
experienced at work, and her consequent use of increasing dosages of
multiple medications that caused her to be admitted to the in-patient
detoxification program at the Johns Hopkins Medical Center in July 1993.
IEx. C2a, pp. 4-5.<2>
In a follow-up evaluation dated September 23, 1993, approximately one
and a half months from appellant's discharge from the detoxification
program, the neurologist who referred her to the program noted that
she had improved substantially. IEx. C2h. On November 23, 1993, the
psychiatrist who treated appellant after July 7, 1993, wrote to the
agency's medical officer to give him an update on appellant's condition.
He noted that the hospitalization had proven to be very beneficial in that
she had improved and required fewer medications to maintain stability.
He reiterated that the combination of antidepressant medication and
the temporary relief she derived from the scheduled mid-week off was
beneficial to her. IEx. C2m. In a second letter to the medical officer,
dated March 22, 1994, he repeated his prognosis and again recommended
that the present schedule of time off on Wednesdays be continued.<3>
Aff., Ex. N.
ANALYSIS AND FINDINGS
The May 1994 settlement agreement requires the agency to pay proven
compensatory damages. The agency determined that the nature and extent
of appellant's proof of her damages claim entitled her to $3,000 for
pain and suffering, and nothing more. For the reasons stated below,
we find that the agency underestimated the size of the award necessary
to compensate her.
Entitlement to Damages
To receive an award of compensatory damages, appellant must demonstrate
that she has been harmed as a result of the agency's discriminatory
action, as well as the extent, nature, severity, and duration of that
harm. 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, 11-12, 14. She must establish a nexus between the alleged
discriminatory action and the harm she suffered. See Browne v. Department
of Agriculture, EEOC Appeal No. 01944256 (July 17, 1995).
Where, as here, the complainant has a pre-existing condition, and that
condition deteriorates as a result of the agency's discriminatory conduct,
the agency is liable to the extent of that additional harm. EEOC Notice
No. N 915.002, at 11. In other words, where a complainant's emotional
harm is due in part to personal difficulties which were not caused or
exacerbated by the agency's discriminatory conduct, the agency is liable
only for the harm resulting from that conduct. Terrell v. Department
of Housing and Urban Development, EEOC Appeal No. 01961030 (October 25,
1996), request for reconsideration denied EEOC Request No. 05970336
(November 20, 1997).
Appellant must present objective evidence that the actions of her
supervisor in rescinding her LWOP accommodation contributed to the
worsening of her psychological and physiological conditions. Smith
v. Department of Defense, EEOC Appeal No. 01943844 (May 8, 1996); Wallis
v. United States Postal Service, EEOC Appeal No. 01950510 (November
13, 1995). Evidence establishing that nexus may include statements from
appellant and others, including family members, friends, and health care
providers, concerning her pain, loss of enjoyment of life, injury to
professional standing, injury to character or reputation, loss of health,
and any other non-pecuniary losses that are incurred as a result of her
supervisor's withdrawal of her LWOP accommodation and giving her a low
performance evaluation in the Fall of 1992. Carle v. Dept. of the Navy,
EEOC Appeal No. 01922369 (Jan. 5, 1993). Appellant should also provide
documentation of her actual out-of-pocket expenses related to medical
treatment, counseling, and so forth, related to the injury caused by
the actions of her supervisor. Id.
Evidence of Causation - Aggravation of Pre-Existing Condition:
We find that the report of the first psychiatrist dated May 31, 1996,
together with his letters to the agency, the second psychiatrist's letters
to the agency, and the neurologist's evaluations, establish the nexus
between the agency's actions in the fall of 1992, and the aggravation
of appellant's pre-existing depression, headaches, and abdominal pain.
The May 1996 report makes it clear that the supervisor's recission of
appellant's LWOP accommodation, his giving appellant a low appraisal
rating, and his refusal to reinstate the LWOP accommodation were the major
aggravating factors that caused appellant's condition to deteriorate.
IEx. C2a, p. 6. While the record does establish that appellant had been
on multiple medications prior to the withdrawal of the LWOP accommodation
in September 1992, it was not until after the LWOP accommodation had
been withdrawn that appellant's use of those medications escalated to
the point where she required inpatient detoxification treatment.
The evidence does not establish that the supervisor's actions caused
her to have to undergo the operation in January 1993. Appellant has
not presented any statements from her doctors or from the surgeon who
performed the operation establishing that the withdrawal of the LWOP
accommodation or the low performance appraisal were factors that led
to the operation. It is by no means clear that the operation was not
inevitable, given the severity of appellant's endometriosis. Finally,
appellant has not presented any evidence apart from her own statements
that she suffered any harm to her character or professional reputation
as a result of the agency's actions. Having established a nexus between
the agency's actions and a good part of the harm suffered by appellant,
we now turn to the task of calculating the amount of damages to which
appellant is entitled.
Nonpecuniary Damages - Pain and Suffering:
When awarding non-pecuniary damages, the amount should be limited to that
necessary to compensate the injured party for actual harm, and that it
should not be monstrously excessive, the product of passion or prejudice,
and should be consistent with the amount awarded in similar cases.
Smith v. Department of Defense, supra. The Commission's decisions in
Smith, Terrell, and Wallis all involved the aggravation of pre-existing
medical conditions.
In Smith, the complainant had been subjected to sexual harassment
between 1990 and 1993. She had been diagnosed with depression many years
before her employment with the agency, but had never been hospitalized
prior to the incidents that gave rise to her complaint. She was
hospitalized four times between April and December 1992, as a result of
the agency's conduct. The Commission awarded the complainant $25,000.
The complainant's hospitalization records revealed that, as a result
of being subjected to sexual harassment the complainant had experienced
"reawakened childhood traumas." Also, the effects that the complainant
experienced as a result of being sexually harassed were of limited
duration in that they did not last beyond the cessation of harassment
itself. The Commission noted that the complainant endured harassment for
thirty three months, but that half of that period pre-dated the Civil
Rights Act of 1991.
In Terrell, the complainant sought compensatory damages in connection with
the depression he experienced after not being selected for a particular
position. As in Smith, the Commission awarded appellant $25,000 in
non-pecuniary damages for emotional distress. The Commission noted that
appellant had been experiencing numerous problems outside the workplace
before the nonselection, including bankruptcy, marital difficulties,
and his wife's illness. The Commission found that the nonselection
exacerbated the complainant's pre-existing emotional and psychological
problems, but to a limited extent. In awarding the complainant $25,000,
the Commission took into consideration the presence of various outside
factors and two-year duration of the complainant's harm.
The complainant in Wallis also had a history of depression before
being subjected to a series of acts later found to be discriminatory.
The complainant had experienced recurring episodes of depression several
years after the incidents in question. The record also established that
the complainant would need to be treated for depression for another
five years. On that basis, the Commission awarded the complainant
$50,000 in nonpecuniary damages.
We find that, as in Smith and Terrell, appellant is entitled to an award
of nonpecuniary compensatory damages in the amount of $25,000. While the
agency is not responsible for appellant's pre-existing condition, it is
responsible for the actions it took which aggravated that condition.
The first psychiatrist stated in his May 1996 report that, between April
and September 1992, appellant had been taking high dosages of multiple
medications to control her symptoms, and that her doctors had expressed
concern that her dosages might pose a risk of toxicity at some point.
The first psychiatrist also reported that appellant's condition remained
stable between April and September 1992. The psychiatrist reiterated
that up until September 1992, appellant's condition had been delicately
balanced, and that the LWOP accommodation had been a critical factor in
maintaining that balance.
In the absence of the LWOP accommodation, appellant attempted to cope with
the stress she experienced on the job by increasing her medications to
levels which required her to undergo inpatient detoxification. The May
1996 report establishes that, after appellant's supervisor rescinded
the LWOP accommodation, appellant's condition rapidly deteriorated.
By the beginning of December, her use of various medications increased.
IEx. C2a, p. 4. When she returned to work in March 1993, following her
operation, her supervisor still had not reinstated the LWOP accommodation.
Although her use of some medications had decreased to approximately
once a week by this time, her use of other medications continued to
rise, to the point that she had substantially exceeded the recommended
dosage. IEx. C2a, p. 4. The neurologist's report dated March 23,
1993 was the first instance in which detoxification was explicitly
recommended. Ex. C2k. In his letter to the agency's medical officer in
July 1993, appellant's second psychiatrist specified that stress played
a potent role in exacerbating both depressive and anxious symptoms, and
that work-related stress has the potential of adversely contributing to
her condition. IEx. C2l.
We are limiting appellant's nonpecuniary damages award to $25,000
because, as in Smith and Terrell, the harm that appellant suffered
as a result of the agency's aggravation of her pre-existing condition
was of limited duration. The LWOP accommodation had been restored by
the time appellant returned to work in August 1993. The neurologist's
follow-up report established that the detoxification program had been
successful, and that, by September 1993, appellant was again able to
manage her symptoms without medical intervention. The report noted that
she would no longer need to see a psychiatrist in connection with her
depression, and that she was no longer dependent upon or addicted to
pain-killers. IEx. C2h. Thus, the time factor that contributed to the
$50,000 award in Wallis is not present in this case.
Pecuniary Losses - Out-of-Pocket Medical Expenses:
Compensatory damages may be awarded for pecuniary losses that are directly
or proximately caused by the agency's discriminatory conduct. EEOC
Notice No. N-915.002 at 8. Pecuniary losses are out-of-pocket
expenses incurred as a result of the employer's unlawful action,
including job-hunting expenses, moving expenses, medical expenses,
psychiatric expenses, physical therapy 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, the issuance of a full-relief offer, or a
voluntary settlement. Id. at 8-9.<4> As previously noted, the evidence
established a causal connection between the agency's withdrawal of
appellant's LWOP accommodation and the aggravation of her pre-existing
medical conditions that caused her to have to undergo detoxification.
The agency is therefore liable for all out-of-pocket expenses that
appellant incurred as a result of the agency's withdrawal of the LWOP
accommodation and refusal to reinstate it.
The record includes a series of checks to Johns Hopkins from appellant
totaling $3,567.94. IEx. C1e. It also includes lists of prescription
medications from various pharmacies. Appellant would be entitled to
reimbursement for the cost of any increase in her medications, above
her baseline expenditures, that were attributable to stress caused
by the agency's conduct. According to the pharmacy records submitted
by appellant and the agency, appellant incurred $928.43 for various
prescription medications between September 1991 and September 15, 1992.
IEx. C1f. Between September 23, 1992 and September 1993, she incurred
$986.25 in expenses for prescription drugs. IEx. C1f; Administrative
File, Tab C. Appellant thus spent an additional $57.82 on medications
between September 1992 and 1993 than she did between September 1991
and 1992. We therefore award appellant $57.82, which represents the
increase in expenditures for medication that resulted from the agency's
withdrawal of appellant's LWOP accommodation.
Appellant has not presented any evidence in connection with her
visits to her two psychiatrists or her other physicians. There are no
bills, checks, or receipts from any of these physicians in the record.
Consequently, we cannot award appellant compensation for any of these
expenses. Based upon the documentation submitted by appellant, we award
her $3,625.76 to cover her out-of-pocket medical expenses.
Leave Reimbursement
Appellant also seeks reimbursement for leave taken as a result of
the agency's actions. This is a claim for equitable relief, not for
compensatory damages, and is therefore beyond the scope of the settlement
agreement, McGowan-Butler v. Department of the Treasury, EEOC Request
No. 05940636 (September 9, 1994).
Interest
Next, appellant claims interest on her compensatory damages award,
which she maintains has accrued since the settlement agreement was
signed on May 11, 1994. Appellant would be entitled to an award of
interest for any agency delay in paying proven compensatory damages.
April v. Department of Agriculture, EEOC Appeal No. 01963775 (June 5,
1997). That interest would not begin to accrue, however, until the
agency actually incurs the underlying liability. See Cole v. United
States Postal Service, EEOC Petition No. 04950009 (February 19, 1997). In
April, the parties signed a settlement agreement on September 1, 1994,
in which the agency agreed to pay proven compensatory damages not to
exceed $30,000. It did not issue its final decision until June 1, 1996.
The Commission found that the complainant became entitled to an award of
compensatory damages on September 1, 1994, when the settlement agreement
was executed. It consequently awarded the complainant interest on the
$30,000 amount from the date of the settlement agreement until the date
that it actually made the payment. The present case is distinguishable
from April in that the May 1994 settlement agreement leaves the amount
of the award to be determined at a later date. Since that amount is
the subject of this appeal, the agency will not incur liability until
the date that this decision becomes final. The agency can therefore
avoid an interest payment if it promptly complies with our order to
award appellant compensatory damages.
Attorney's Fees
Finally, appellant claims that she is entitled to attorney's
fees beyond the $5,000 provided for in the settlement agreement.
The agreement specifically states that the $5,000 limitation applies
only to fees incurred up to the date of the agreement, which was May
11, 1994. The agreement therefore does not apply to work done after the
settlement agreement date. The work performed by appellant's attorney
in connection with her compensatory damages claim took place after
May 11, 1994. Title VII authorizes the award of reasonable attorney's
fees to a prevailing party. 29 C.F.R. � 1614.501(e). A complainant who
settles a discrimination action prior to a determination that the agency
engaged in discriminatory employment practices is a prevailing party,
for purposes of being awarded attorney's fees, if she obtains some of
the benefits she sought in bringing the action. Troie v. United States
Postal Service, EEOC Request No. 05930866 (September 22, 1994). In this
case, the efforts of appellant's attorney will result in a settlement
award significantly larger than what the agency had proffered in its
final decision. Appellant therefore meets the definition of prevailing
party, and as such, is entitled to attorney's fees for work done in
connection with her damages claim. Appellant's attorney is advised to
timely submit his claim to the agency, and to follow the guidelines in
29 C.F.R. � 1614.501(e), regarding submissions.
CONCLUSION
Based upon our review of the record, and for the foregoing reasons,
the Commission finds that appellant is entitled to receive an award of
compensatory damages from the agency in the amount of $28,625.76, of which
$25,000 constitutes compensation for pain and suffering and $3,625.76
constitutes compensation for appellant's out-of-pocket medical expenses.
We also find that appellant is entitled to an award of attorney's fees,
the amount of which shall be determined in accordance with 29 C.F.R. �
1614.501(e).
ORDER (D1092)
Within thirty calendar days of the date that this decision becomes final,
the agency shall issue a check to appellant in the amount of $28,625.76.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include evidence that the corrective action
has been implemented.
Since appellant has been represented by an attorney (as defined by 29
C.F.R. �1614.501(e)(1)(iii)), she is entitled to an award of reasonable
attorney's fees incurred in the processing of her compensatory damages
claim. 29 C.F.R. �1614.501 (e). The award of attorney's fees shall be
paid by the agency. The attorney shall submit a verified statement of
fees to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. �1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark,
the request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and any supporting documentation must be submitted with your
request for reconsideration. The Commission will consider requests
for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. �1614.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. It is the position of the Commission that you
have the right to file a civil action in an appropriate United States
District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you
receive this decision. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. In the alternative,
you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR
DAYS of the date you filed your complaint with the agency, or filed your
appeal with the Commission. If you file a civil action, YOU MUST NAME
AS THE DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY
HEAD OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME
AND OFFICIAL TITLE. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work.
Filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. ��791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
June 14, 1999
_______________ ______________________________
Date Frances M. Hart
Executive Officer
Executive Secretariat
1Appellant had also been pursuing a Ph.D. in Economics from American
University. She began the program in 1983, finished her dissertation
in February 1992, and was awarded her doctorate in May 1992. She
acknowledged that, in addition to her medical reasons for doing so,
she was allowed to take leave without pay every Wednesday in order to
pursue her doctoral studies.
2This report is corroborated by correspondence prepared by the
psychiatrist, the neurologist, and other physicians who treated appellant
between October 1992 and May 1994.Aff. Ex. E; IEx. C2i, C2k, C2l.
3These two letters, together with the second psychiatrist's July 16,
1993 letter to the agency's medical officer, indicate that appellant was
granted some form of LWOP accommodation involving Wednesdays off by July
1993, although the record does not specify the exact date on which the
new LWOP accommodation began.
4Future pecuniary losses are losses that are likely to occur after
resolution of a complaint. EEOC Notice No. N 915.002. at 9. In this case,
appellant is not entitled to recover for future pecuniary losses because
the neurologist's September 1993 report and the second psychiatrist's
November 1993 and March 1994 letters establish that the harmful effects
caused by the agency' actions had effectively ceased.