01A13535
09-04-2003
William S. Steenson, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
William S. Steenson v. Department of Agriculture
01A13535
September 4, 2003
.
William S. Steenson,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A13535
Agency No. 92-0921
DECISION
Complainant timely initiated an appeal from a final agency decision (FAD)
concerning his award of compensatory damages. Complainant's claim for
compensatory damages arose out of his complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of
1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., Section 501
of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., filed on September 21,
1992. The agency issued a final decision on May 25, 1995, finding that
complainant had been discriminated against on the basis of reprisal only.
The 1995 FAD also declared that complainant was not entitled to any
compensatory damages. Complainant appealed that decision, and on May
30, 1997, the Commission vacated the FAD and remanded the case back
for a supplemental investigation on the issue of compensatory damages.
The Commission did not, however, alter the finding of discrimination
on the basis of reprisal. Further, we did not make a determination as
to whether discrimination based on any of complainant's other claimed
bases occurred, concluding that �the issue of whether [complainant] was
discriminated against on the bases of age, sex, and physical disability,
as well as reprisal, is no longer a live issue, since discrimination
was found on the basis of reprisal and [complainant] would be entitled
to no more relief if it were found that he was discriminated against on
the other bases as well.� See Steenson v. Department of Agriculture,
EEOC Appeal No. 01955152 (May 30, 1997).
A supplemental investigation on the issue of compensatory damages was
conducted by the agency and a subsequent FAD was issued on March 23, 2001,
awarding complainant $1,255.05 in past pecuniary damages and $12,000
in non-pecuniary damages, for a total award of $13,255.05. Complainant
appeals that award herein. The appeal is accepted pursuant to 29
C.F.R. � 1614.405. For the following reasons, the Commission modifies
the agency's final decision.
FACTUAL BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a National Environmental Protection Act (NEPA) Coordinator at the
agency's Ouachita National Forest facility, in Perryville, Arkansas.
Complainant sought EEO counseling and subsequently filed a formal
complaint alleging that he was discriminated against on the bases of race
(Caucasian), sex (male), disability (back injury), age (D.O.B. 1/9/43),
and reprisal for prior EEO activity when he was not selected for the
position of NEPA Coordinator at the Medicine Bowl National Forest facility
in Douglas, Wyoming.
In its 2001 FAD, the agency made the following compensatory damages
determinations:
Amount Requested
Amount Awarded
For Arkansas State Income Taxes<1>
$ 9,800.00
$ 0.00
For house sale expenses
$ 8,905.00
$ 0.00
For commuting cost and lost time
$ 26,203.00
$ 0.00
For dollar value of lost sick and annual leave hours
$ 13,000.00
$ 0.00
For medical expenses
$ 3,141.60
$ 1,255.05
For future pecuniary losses
$ 100,000.00
$ 0.00
Non-pecuniary damages
$ 300,000.00
$ 12,000.00
TOTAL
$ 461,049.60
$ 13,255.05
On appeal, complainant contends that the agency's denial of the amounts
requested was without merit and/or contrary to existing law.<2> The
agency requests that we affirm its FAD.
ANALYSIS AND FINDINGS
When discrimination is found, the agency must provide complainant with
full, make-whole relief to restore him as nearly as possible to the
position he would have occupied absent the discrimination. See, e.g.,
Franks v. Bowman Transportation Co., 424 U.S. 747, 764 (1976); Albemarle
Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975); Wan v. United States
Postal Service, EEOC Appeal No. 01995204 (July 11, 2001). The Commission
recognizes that not all harms done are amenable to precise quantification;
the burden of limiting the remedy, however, rests with the employer.
Smallwood v. United Airlines, Inc., 728 F.2d 614, 616 n.5 (4th Cir.),
cert. denied, 469 U.S. 832 (1984).
In West v. Gibson, 119 S.Ct. 1906 (1999), the Supreme Court held that
Congress afforded the Commission the authority to award compensatory
damages in the administrative process. Section 102(a) of the Civil
Rights Act of 1991 (the 1991 CRA), codified as 42 U.S.C. � 1981a,
authorizes an award of compensatory damages as part of the "make whole"
relief for intentional discrimination in violation of Title VII of the
Civil Rights Act of 1964, as amended. Section 1981a(b)(2) indicates
that compensatory damages do not include back pay, interest on back
pay, or any other type of equitable relief authorized by Title VII.
Section 1981a(b)(3) limits the total amount of compensatory damages
that may be awarded to each complaining party for future pecuniary
losses, emotional pain, suffering, inconvenience, mental anguish, loss
of enjoyment of life, and other non-pecuniary losses, according to the
number of persons employed by the respondent employer. The limit for
an employer with more than 500 employees, such as the agency herein,
is $300,000. 42 U.S.C. � 1981a(b)(3)(D).
If a complainant alleges that he is entitled to compensatory damages
and the agency or Commission enters a finding of discrimination, the
complainant is given an opportunity to submit evidence establishing his
claim. 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 (December 11, 1995); Compensatory and Punitive
Damages Available Under Section 102 of the Civil Rights Act of 1991,
EEOC Notice No. 915.002 (July 14, 1992), at 11-12, 14 (Guidance).
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. Guidance at 8.
Pecuniary losses are out-of-pocket expenses that are incurred as a result
of the employer's unlawful action, including job-hunting expenses,
moving expenses, 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, an
offer of full relief, or a voluntary settlement. Id. at 8-9.
A compensatory damages award should fully compensate a complainant for
the harm caused by the agency's discriminatory action even if the harm
is intangible. Id. at 13. Thus, a compensatory damages award should
reimburse a complainant for proven pecuniary losses, future pecuniary
losses, and non-pecuniary losses. A complainant has a duty to mitigate
his or her pecuniary damages. Id. at 9. If a respondent can prove that
a complainant failed to mitigate pecuniary damages, the damages award
should be reduced to reflect all losses that could have been avoided by
the exercise of reasonable diligence. Id. at 9-10.
Pecuniary Damages
State Income Taxes
Complainant argues that he is entitled to reimbursement for the income
tax he was required to pay on his salary as a resident of Arkansas.
Complainant contends that he would not have incurred this tax liability,
but for the agency's discriminatory non-selection, because Wyoming does
not have a state income tax.<3> The agency, in response, argues that
complainant is not entitled to this amount because: 1) he has not adduced
evidence demonstrating that his overall tax liability would have been
less, when items such as property tax or sales tax are considered; and 2)
�there is no legal basis to conclude that the complainant's tax liability
in Arkansas was proximately caused by� the discriminatory non-selection.
We agree with the agency that complainant has not adduced evidence
demonstrating that he was required to pay higher amounts in taxes due to
the agency's discrimination. We note that an individual's tax liability
includes a number of factors, including sales, property and excise
taxes, and that various state taxes may also be deductible on federal tax
returns.<4> While the State of Wyoming does not have a state income tax,
complainant has not submitted evidence establishing with the requisite
certainty his claim that he in fact incurred a higher tax burden.
See Guidance, id. (�Compensatory damages �may be had for any proximate
consequences which can be established with requisite certainty.' 22 Am
Jur 2d Damages � 45 (1965)."). Complainant's bare assertion regarding
the fact that the State of Wyoming does not have a state income tax
is insufficient to establish the extent, nature, and severity of the
claimed harm or to otherwise �establish[ ] with requisite certainty"
that the agency's discrimination �had ... any proximate consequences�
with respect to complainant's tax liability. Id.
House Sale Expenses
Complainant claims $8,905 for expenses associated with selling his
house and moving into an apartment, while still residing in Arkansas.
Specifically, complainant claims $725.00 in closing costs, $4,990.00
in realtor fees, and $900.00 in storage fees. Complainant contends
that due to the stress caused by the agency's discriminatory action,
he was unable to �deal with the requirements and responsibilities of
home ownership during [1992-1995].� He therefore sold his home and
moved into an apartment with fewer responsibilities. In the 2001 FAD,
the agency denies all amounts requested. In so doing, the agency cited
the lack of medical documentation that would tend to support complainant's
argument of excessive stress.
Medical evidence is not the only means of proving emotional distress
and its effects. Both complainant and his wife submitted affidavits
detailing the emotional damage this non-selection caused. Specifically,
complainant's wife details that the stress took such a toll on
complainant's health that the responsibilities of maintaining a home
became too much. We find that the agency has not rebutted this claim.
As such, complainant is entitled to recovery.
Nevertheless, we find that complainant is not entitled to the total
amount he seeks. Complainant contends that had he received the job in
Douglas in 1992, the U.S. Government would have purchased his home, and
he therefore would not have incurred the above expenses. The record,
however, is void of any evidence substantiating this claim. Thus,
complainant has not proven that had the agency awarded complainant the
position in Wyoming, he would not have still incurred expenses commonly
associated with the sale of a house.
Complainant has, however, demonstrated a causal nexus between the
sale of his home and the stress he was suffering from as a result of
the discrimination. Thus, complainant is awarded $900.00 for storage
expenses.
Commuting Time and Costs
Complainant claims $26,203 in �hard commuting costs.� This figure
represents the 49 miles<5> per day complainant drove between his home
in Conway, Arkansas, and his duty station in Perryville, Arkansas,
for the 570 work days between his discriminatory non-selection in April
1992, and his transfer to Wyoming in April 1995. Further, the amount
includes interest on mileage reimbursement amount,<6> and an hour of
time complainant lost in commuting to Perryville, multiplied by 570 days,
including interest. The agency denied complainant's claim for commuting
time and costs, arguing that his residence in Conway was voluntary and
therefore the agency is not the proximate cause of complainant incurring
commuting expenses.
With respect to commuting time, complainant argues that the agency should
reimburse him for the hour a day he lost as a result of having to commute
to Perryville from Conway. Complainant figured out his hourly rate
to be $20.68 - $27.25 per hour, based on his salary with the agency,
and multiplied that figure by 570 working days, for a total demand
of $16,503.00.
Complainant's argument is without merit. Complainant is a salaried
employee of the agency, not hourly. Thus, he would not have received
another hour's pay had he not been commuting from Conway to Perryville.
Complainant does not argue that he had a part-time job wherein his
shift length was shortened due to his commute from his duty station with
the agency. Ergo, it would seem complainant is asking to be reimbursed
for personal time at a rate he earns doing business for the agency.
This is not compensable.
With respect to complainant's claim for �hard commuting costs,� we
find complainant's argument unpersuasive. There is no showing that,
had complainant been transferred to Douglas, Wyoming in 1992, he would
have been able to secure a residence within 3 miles of his duty station.
(We also note that, as discussed above, complainant sold his home
in Conway and moved into an apartment in Perryville in May 1994,
and that complainant submitted no information regarding the length of
his commute from Perryville.) We again find the bare fact that, when
complainant transferred to Douglas, Wyoming in 1995, he was able at
that time to locate and secure an available residence within 3 miles
of his duty station, is insufficient in and of itself �to establish[]
with requisite certainty� that but for the agency's non-selection of
him in 1992, he would have been able to do so then. Guidance, supra.
Medical Expenses
Complainant claimed $5,021.26 in medical expenses and prescription
medicine costs. Complainant contends that he experienced additional
problems with his hypertension condition, emotional pain and stress,
and adult-onset allergies. The agency awarded only 25% of this demand
amount, $1,255.05, arguing that complainant's records were unclear
as to how much stress he suffered as a result of the discriminatory
non-selection and how much stress was attributable to the lengthy delay
by the agency in processing his complaint. The agency further argues
that, with regard to complainant's condition of adult-onset allergies,
the evidence presented did not demonstrate that this was a result of
the agency's actions, but rather, complainant's allergies were due to
the fact that complainant has a cat. Lastly, the agency avers that the
prescription receipts are vague and do not indicate the medical condition
for which the medication was prescribed.
Exhibits B2 and C2 of a voluminous, but very well organized, record
detail complainant's doctor visits and medications taken over the time
period in question. After a thorough review of these records, we find
that complainant is not entitled to any additional amount. Thus, the
award of $1,255.05 stands.
Future Pecuniary Damages
Complainant argues that had he been selected for the grade GS-11 NEPA
Coordinator position in April 1992, he would have been further promoted
to GS-12 and GS-13 positions. Complainant identifies one specific job,
Forest Planner, GS-12, in Ouachita National Forest, that he believes
he did not receive because of his loss of reputation and standing with
the agency. He further contends that this loss in promotion also has
the ripple effect of reducing his pension. The agency denied the claim
for future losses, concluding that the evidence submitted by complainant
was insufficient to make a concise determination as to his losses and
economic harm suffered.
We agree with the agency. Outside of the affidavit submitted by
complainant, there is no evidence in the record to support the conclusion
that complainant would have received the Forest Planner position even
if he had been selected for the NEPA Coordinator position. Moreover,
there is no evidence, beyond complainant's affidavit, of complainant's
loss of reputation with the agency. In fact, complainant received
the NEPA Coordinator position he sought in 1995. While we do not
doubt complainant's perceptions of loss of reputation and the like,
this perception alone is an insufficient basis for an award of damages.
Therefore, the agency's denial of future pecuniary damages is affirmed.
Non-Pecuniary Damages
Finally, complainant appeals the award of $12,000 for his pain and
suffering caused by the agency's treatment. The record indicates that
complainant asserted that he experienced hair loss, weight gain, skin
rashes, fatigue, insomnia, loss of marital harmony, sexual dysfunction,
decreased libido, anger, apprehension, anxiety, loss of self-esteem,
extreme distrust, grief, feelings of isolation, depression, worry,
loss of dignity, humiliation, embarrassment, and a general loss of
enjoyment of life, friends and family. Complainant argues that he
began to experience this emotional pain and suffering in mid-1992,
with the feeling of mistrust, loss of interest in social interaction,
feelings of isolation and loss of marital harmony continuing today.
Damages awards for non-pecuniary losses that have been assessed by juries
and courts have varied significantly. Guidance at 13. However, an award
of compensatory damages for non-pecuniary losses, including emotional
harm, should reflect the extent to which the respondent directly or
proximately caused the harm and the extent to which other factors also
caused the harm. Id. at 11-12. An award of compensatory damages for
non-pecuniary losses should also reflect the nature and severity of the
harm and the duration or expected duration of the harm. Id. at 14.
Jury and court awards for emotional distress or mental anguish which
did not include major depression have ranged from $500 to $100,000.
See, e.g., Fleming v. County of Kane, State of Illinois, 898 F.2d
553, 562 (7th Cir. 1990) (jury award of $120,000 reduced to $40,000
for embarrassment, humiliation, severe headaches, sleeplessness, and
depression following a termination); Wulf v. City of Wichita, 883 F.2d
842, 874-875 (10th Cir. 1989) (jury award of $ 250,000 award remanded
for reconsideration and an award of damages no greater than $50,000 for
anger, depression, anxiety, frustration and emotional strain following
a termination); Jackson v. Pool Mortgage Co., 868 F.2d 1178, 1180 (10th
Cir. 1989) ($24,421 award for depression, muscle spasms, stomach pain,
and hair loss following a termination); Kuntz v. City of New Haven,
3 AD Cases 1590, 1592 (D.C. Conn.) ($500 award for emotional distress
based on testimony that plaintiff was �disappointed,� �cranky� with
family and friends, �embarrassed� at not having been promoted, and had
many sleepless nights), aff'd. without opinion, 29 F.3d 622 (2d Cir.),
cert. denied sub nom., City of New Haven v. Kuntz, 155 S.Ct. 667 (1979);
McClam v. City of Norfolk Police Department, et al., 877 F. Supp. 277,
284 ($15,000 award for 18 months of headaches, lowered self esteem, and
changes in attitude and devotion toward job following repeated denials
of job transfer requests); Boyce v. Board of Commissioners of Dickinson
County, 857 F. Supp. 794 (D. Kan. 1944) ($50,000 award for emotional pain,
suffering and mental anguish due to a hostile work environment); Willson
v. Shannon, 857 F. Supp. 34, 37 (S.D. Tex. 1994) ($100,000 award for
mental anguish due to reprisal for filing a discrimination complaint); and
Johnson v. Philadelphia Electric Co., 709 F. Supp. 98, 104 (E.D. Pa. 1989)
($10,000 for mental anguish following the denial of a promotion).
The Commission has awarded varying amounts, depending upon the extent
and duration of the harm suffered. See, e.g., McCann v. Department
of the Air Force, EEOC Appeal No. 01971851 (October 23, 1998) ($75,000
awarded where complainant's testimony and several reports supported a
finding that the agency's discrimination reawakened complainant's post
traumatic stress disorder); Turner v. Department of the Interior, EEOC
Appeal No. 01956390 (April 27, 1998) ($40,000 awarded where discriminatory
harassment, particularly forcing complainant to carry a 45-pound back
pack, caused her to experience psychological trauma and physical injury
with permanent effects); Christian v. Department of Veterans Affairs,
EEOC Appeal No. 01996342 (September 7, 2001) ($30,000 awarded where
complainant was continuously sexually harassed by a co-worker for a
period of six years, no medical evidence produced); Mooney v. United
States Department of Agriculture, EEOC Appeal No. 01974494 (May 24, 2000)
($20,000 awarded where complainant suffered from depression and anxiety
for 6-7 months, followed by a 4-5 month period of Major Depression,
due to the agency's discrimination); and Yue Lee Wan v. United States
Postal Service, EEOC Appeal No. 01995204 (July 11, 2001) ($15,000 awarded
where there was loss of marital harmony, emotional distress, depression,
and inability to sleep).
After a thorough review of the record, we find that the agency's
award of $12,000 is appropriate. We point out that non-pecuniary
compensatory damages are designed to remedy a harm and not to punish
the agency for its discriminatory actions. See Memphis Community School
Dist. v. Stachura, 477 U.S. 299, 311-12 (1986) (stating that compensatory
damages determination must be based on the actual harm sustained and not
the facts of the underlying case). The Commission notes that this award
is not �monstrously excessive� standing alone, is not be the product
of passion or prejudice, and is consistent with the amount awarded in
similar cases. See Ward-Jenkins v. Department of the Interior, EEOC
Appeal No. 01961483 (March 4, 1999) (citing Cygnar v. City of Chicago,
865 F. 2d 827, 848 (7th Cir. 1989)).
Equitable Relief
Sick and Annual Leave
Complainant states that he was required to take 330 hours of sick, annual
and other leave because of the emotional distress he suffered, as well as
because of �the work involved in preparing [his] complaint, appealing,
[and] writing numerous letters to obtain the status of my claim over
the years . . . .� The agency noted in its FAD that complainant is not
entitled to recover damages associated with the pursuit of, or aggravation
resulting from, the process of pursuing his EEO complaint. The agency
also noted that �restoration of leave is not considered compensatory
damages.� Accordingly, the agency denied the claim.
We agree with the agency that complainant is not entitled to recover
damages associated with the pursuit of, or aggravation resulting from,
the process of pursuing his EEO complaint. Rountree v. Department of
Agriculture, EEOC Request No. 05950919 (February 15, 1996). In addition,
we agree that complainant is not entitled to monetary reimbursement for
the dollar value of leave used.
Nonetheless, after a careful review of the record, we find the agency's
ultimate disposition of these claims to be disingenuous and troublesome.
First, we note that complainant clearly requested reimbursement of all
leave taken in order to prepare his complaint and subsequent appeal.
This claim is not addressed by the agency and there is no showing in
the record that complainant was in fact granted a reasonable amount of
official time in order to prepare his complaint and subsequent appeal.
We remind the agency that it has an obligation to �inform complainants,
their representatives, and others who may need official time, such as
witnesses, of the process and how to claim or request official time.�
EEOC Management Directive 110, November 9, 1999 (MD-110) at 6-17.
Consequently, if the agency failed to grant such requests herein,
or otherwise did not fulfill its obligation as enumerated above, it
is obligated to restore all leave taken in lieu of improperly denied
official time. See MD-110 at 5-27.
Second, we note that a complainant is entitled to restoration of leave
which was taken for purposes of avoiding or recovering from discriminatory
conduct. In order to be entitled to leave restoration, the employee must
demonstrate a causal nexus between the discrimination and need to take
leave. Velez v. United States Postal Service, EEOC Appeal No. 01902746
(November 16, 1990). As noted by the agency, restoration of leave so
used is not available as a component of compensatory damages because
restoration of leave constitutes an equitable remedy. Whiting v. ACTION,
EEOC Request No. 05900093 (June 27, 1990); McGowan-Butler v. Department
of the Treasury, EEOC Request No. 05940636 (September 9, 1994).
Here, the agency merely noted that restoration of leave used constitutes
an equitable remedy rather than a component of compensatory damages.
The agency did not find that complainant did not take any of the cited
leave for purposes of avoiding or recovering from discriminatory conduct,
nor did it find that complainant failed to demonstrate a causal nexus
between the discrimination and need to take leave. See Whiting, supra;
Velez, supra. Neither did the agency indicate, nor does the record
establish, whether or not complainant was in fact awarded any restoration
of leave as a component of equitable relief.
Accordingly, we direct the agency and complainant to the order below.
CONCLUSION
The compensatory damages awarded to complainant are as follows:
Amount Requested By Complainant
Amount Awarded By Agency
Amount Awarded by Commission
For Arkansas State Income Taxes
$ 9,800.00
$ 0.00
$ 0.00
For storage expenses
$ 8,905.00
$ 0.00
$ 900.00
For commuting cost and lost time
$ 26,203.00
$ 0.00
$ 0.00
For dollar value of lost sick and annual leave hours
$ 13,000.00
$ 0.00
$ 0.00
For medical expenses
$ 3,141.60
$ 1,255.05
$ 1,255.05
For future pecuniary losses
$ 100,000.00
$ 0.00
$ 0.00
Non-pecuniary damages
$ 300,000.00
$ 12,000.00
$12,000.00
TOTAL
$ 461,049.60
$ 13,255.05
$ 14,155.05
After a careful review of the record, including complainant's contentions
on appeal, the agency's response, and arguments and evidence not
specifically addressed in this decision, we modify the agency's final
decision and direct the agency to take remedial actions in accordance
with this decision and Order below.
ORDER (D0900)
To the extent that it has not already done so, the agency is ordered to
take the following remedial action within sixty (60) days of the date
this decision becomes final:
The agency shall pay complainant $14,155.05 in compensatory damages.
If the agency has already tendered to complainant the $13,255.05 awarded
in the 2001 FAD, it shall tender the remaining amount of $900.00 to
complainant within sixty (60) days;
To the extent that it has not already done so, the agency shall determine
the dates and amount of leave complainant used in connection with the
discrimination, if any, and restore such leave pursuant to 29 C.F.R. �
1614.501, no later than sixty (60) calendar days after the date this
decision becomes final. The complainant shall cooperate in the agency's
efforts to compute the amount of leave to restore, and shall provide all
relevant information requested by the agency. If there is a dispute
regarding the exact amount of leave to restore, the agency restore to
complainant the undisputed hours within thirty (30) calendar days of the
date the agency determines the amount of leave it believes to be due.
The complainant may petition for enforcement or clarification of the
amount in dispute. The petition for clarification or enforcement must
be filed with the Compliance Officer, at the address referenced in the
statement entitled "Implementation of the Commission's Decision."
The agency shall determine whether complainant used any personal leave
in lieu of a reasonable amount of official time and restore such leave,
pursuant to 29 C.F.R. � 1614.501, no later than sixty (60) calendar
days after the date this decision becomes final. Complainant shall
cooperate with the agency's efforts to determine the dates and amount
of personal leave he used, and shall provide all relevant information
requested by the agency. If there is a dispute regarding the exact
amount of leave to be restored, the agency shall restore to complainant
the undisputed amount within thirty (30) calendar days of the date the
agency determines the amount it believes to be due. The complainant
may petition for enforcement or clarification of the amount in dispute.
The petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
"Implementation of the Commission's Decision."
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 of the
payment to complainant and other benefits due complainant, including
evidence that the corrective action has been implemented.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (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.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(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. See 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:
September 4, 2003
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__________________
Date
1 The record indicates that amounts requested
included interest calculated at eight percent (8%) per annum, beginning
when expense was incurred.
2 Complainant did not submit a formal brief on appeal. Rather,
complainant provided this Commission with a copy of a proposed settlement
demand he submitted to the agency. We, thus, construed this submission
as complainant's arguments on appeal.
3 The Commission takes administrative notice that this statement is
correct; Wyoming residents incur no state income tax liability.
4 Complainant asserts that the net tax burden incurred, after accounting
for the federal benefit, was $6,438. However, the record contains
complainant's federal tax returns for 1987-1992, whereas the years
1992-1995 are applicable; in addition, complainant put forth no evidence
regarding sales, property or excise taxes.
5 Complainant attests that the drive from his home in Conway to his duty
station in Perryville was 52 miles. He goes on, however, to consider
that his drive from his home in Douglas to his duty station in Douglas
is 3 miles, for a commuting difference of 49 miles.
6 Without interest, the amount claimed for mileage is $6982.50, which is
49 miles, at 25 cents per mile ($12.25/day) multiplied by 570 work days.