01983857
10-03-2000
Amelia M. Canino, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Amelia M. Canino v. Department of the Navy
01983857
October 3, 2000
.
Amelia M. Canino,
Complainant,
v.
Richard J. Danzig,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01983857
Agency No. 92-00102-023
DECISION
The complainant<1> timely filed an appeal with this Commission from a
final agency decision and an agency letter dated, respectively, March 18,
1998 and April 2, 1998 concerning her complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq. The appeal is accepted under 29
C.F.R. � 1614.405).<2>
ISSUE PRESENTED
Whether the agency properly determined the complainant's damages and
the amount of leave it must reimburse her.
BACKGROUND
The complainant filed an EEO complaint alleging employment discrimination
when she was harassed by a male co-worker (perpetrator) from August 1991
to April 1992. The Commission found gender harassment discrimination.
Fiandaca v. Department of the Navy, EEOC Appeal No. 01943264 (September
21, 1995), request for reconsideration denied, Fiandaca v. Department
of the Navy, EEOC Request No. 05960069 (January 24, 1997).
Damages are not available for acts of employment discrimination which
occurred prior to the passage of the Civil Rights Act of 1991 on November
21, 1991. Landgraf v. USI Film Products, 511 U.S. 244 (1994). Reasoning
that the record did not clearly specify which acts of discrimination
occurred subsequent to November 21, 1991, nor what damages occurred as a
result of this discrimination, the Commission in EEOC Request No. 05960069
remanded the complaint for a supplemental investigation on these matters.
It also ordered the agency, in relevant part, to reimburse the complainant
for any leave used as a result of the harassment.
The record shows that in July 1991, the complainant, a Management
Analyst with the agency's Portsmouth Naval Shipyard in Portsmouth,
New Hampshire, broke off a 10 month intimate relationship with a male
co-worker (perpetrator). The complainant indicated that the perpetrator
was controlling and abusive. She stated that once in February or March
1991, and once in May 1991, she got bruised up by the perpetrator,
and that she was repeatedly verbally abused and threatened by him.
In late July 1991, the perpetrator left threats on the complainant's home
telephone answering machine. She obtained orders for protection from
abuse from the police and local court, including, most significantly,
a one year order issued in September 1991 that allowed work related
communications by the perpetrator. The complainant's applications to
the court referred to the above incidents of abuse, the perpetrator's
ongoing cold stares and an attempt by him to sabotage her at work, an
apparent reference to the perpetrator discussing their legal situation
with management and giving a false slant. She wrote she was deathly
scared of the perpetrator.
The complainant stated that in August 1991 the perpetrator began to harass
her at work. She notified agency management of this the same month.
Once in August 1991, over the course of an hour, the perpetrator glared
at the complainant, repeatedly asked to talk, and followed and chased her
around the office. The complainant was shaken and scared, and contacted
the police. This incident lead to the perpetrator pleading guilty in
court to the charge of violating the order for protection and abuse.
Late one day in October 1991 the perpetrator covertly approached the
complainant's work building, asked her to let him in, and when rebuffed
returned with a borrowed key and entered the building. The complainant
believed she was being stalked by the perpetrator to intimidate her about
legal matters, that he may have a weapon, and she was shaken and afraid.
She again contacted the police. On November 15, 1991, the perpetrator
slammed down a copy machine top while glaring at the complainant,
making her nervous and scared. On November 18, 1991, the perpetrator
tricked an Employee Assistance Counselor into relaying a message to the
complainant not to harass the perpetrator. The complainant believed
this referred to legal matters and saw the message as a serious threat.
She was afraid and extremely upset, and contacted the police.
The complainant expressed in August and September 1991 that she was very
fearful of the potential consequences of being forced to testify in a
court that was adjudicating a child custody battle between the perpetrator
and his wife. The court testimony was in early November 1991.
After November 21, 1991, through April 1992, the complainant documented
a small number of specific workplace incidents with the perpetrator that
were very upsetting to her. In late January 1992 the perpetrator referred
to the complainant as the devil as she walked by, and in early February
1992 called her a slut under his breath. The complainant indicated these
remarks made her fearful because the perpetrator normally said such things
before getting violent tempered. In February 1992, the perpetrator
sarcastically said to the complainant �Hi Sweetie, want to talk?� In
early April 1992 the complainant was surprised when she encountered the
perpetrator at work after his work hours, making her scared and shaken.
In April 1992, the complainant reported that the perpetrator falsely
told a co-worker he was not harassing the complainant in an attempt to
influence potential testimony by the co-worker in an upcoming criminal
legal proceeding. Finally, the complainant averred that in October
1992, as both of them were exiting the shipyard in their vehicles, the
perpetrator deliberately cut her off. The record did not establish that
this traffic incident was intentional.
Additionally, the complainant indicated that primarily from August
1991 to early July 1992, with intermittent breaks of a few weeks, the
perpetrator regularly harassed her by staring, glaring, and putting
himself in a position to watch her. She documented a moderate number of
specific incidents from August 1991 to February 1992. The complainant
indicated that some of these incidents were intimidating and most made
her uncomfortable. The complainant stated that after early July 1992,
with the exception of the October 1992 traffic incident, the perpetrator
greatly reduced acts of harassment.
While the complainant emphasized workplace incidents, the record shows
she was also upset by several incidents that took place outside of work
after November 21, 1991. In mid-January 1992 the complainant wrote
agency management that she was told to have her children evaluated due
to past accused actions of the perpetrator, and she was sick about this.
In February 1992 the complainant wrote that she believed the perpetrator
was watching her home. A February 1992 note by a psychologist the
complainant saw then refers to the perpetrator glaring at the complainant
in a supermarket and her tires being flat when she returned to her car,
as well as calls from the perpetrator's ex-wife. Another note written
by the psychologist in June 1992 refers to the complainant believing she
was stalked when she went to Bible study, and that she was obsessing.
The complainant later told a psychiatrist the perpetrator followed her
there.
On remand, the complainant stated that as a result of the workplace
harassment that continued to the end of 1992, she sustained pecuniary
and nonpecuniary losses to December 1992. This was consistent with her
statement in the underlying investigation. She requests $8,707.49 in
medical expenses, $132.43 in mileage for driving to health care provider
appointments,$45,000 in nonpecuniary damages, and reimbursement of 231
hours for various types of leave used.
The final agency decision considered damages for incidents of
discrimination that occurred from November 21, 1991 to December 1992.
Reasoning there were many pre-existing and intervening factors,
the agency awarded 20% of each of the above remedies the complainant
requested, i.e., $1,800 in combined medical expenses and mileage, and
$9,000 in nonpecuniary damages. By separate letter, the agency awarded
the complainant 20% of the leave she claimed she used as a result of
discrimination.
ANALYSIS AND FINDINGS
Compensatory damages may be awarded for past pecuniary losses, future
pecuniary losses, and nonpecuniary losses that are directly or proximately
caused by the agency's discriminatory conduct. Compensatory and Punitive
Damages Available Under Section 102 of the Civil Rights Act of 1991,
EEOC Notice No. N 915.002 (July 14, 1992).<3> Pecuniary losses are
out-of-pocket expenses incurred as a result of the employer's unlawful
action, including medical and other quantifiable out-of-pocket expenses.
Past pecuniary losses are pecuniary losses incurred prior to the date of
the resolution of the damage claim. Future pecuniary losses are losses
that are likely to occur after the resolution of litigation. Nonpecuniary
losses are losses that are not subject to precise quantification including
emotional pain and loss of health. Id.
Nonpecuniary Damages
The complainant stated she sustained nonpecuniary losses to the end
of 1992. By April 1991, she began to visit heath care professionals
for treatment of symptoms caused by the perpetrator's harassment.
The complainant visited a psychologist 14 times between April 1991 and
August 1992. The psychologist diagnosed the complainant with adjustment
disorder and depressed mood, with symptoms of crying spells and disturbed
sleep starting in March 1991 because of harassment and intimidation by
the perpetrator. The psychologist stated that the complainant's physical
safety was the primary concern and major focus of treatment.
The complainant also visited her family physician, and submitted his
contemporaneous notes of visits between June 1991 to August 1992.
The physician characterized the complainant's illness as affective
disorder, stating it was associated with harassment at work. On a
July 7, 1992 visit, the complainant complained of suicidal thoughts,
fatigue, weeping, and severe headache. The family physician advised the
complainant to be hospitalized, later stating it was due to harassment
at work.
The complainant went to the emergency room on July 7, 1992, was admitted,
and discharged on July 17, 1992. The discharging physician diagnosed the
complainant, in pertinent part, with major depression, single episode,
severe without psychotic features, and schizotypal traits. The medical
report recounts a history of major depression symptoms with poor sleep
and appetite with weight loss, lowered mood with suicidal ideation,
and a marked worsening of symptoms in the 2� months prior to admission,
with the major precipitant of the symptoms being ongoing harassment in
the workplace which the complainant felt was not adequately dealt with
by the agency. During the hospitalization, the complainant told a staff
member that the history of her problem was harassment by the perpetrator
since their breakup at work and outside since then. By discharge,
the complainant was no longer depressed and was concentrating clearly.
She was cleared to return to work and did so starting July 24, 1992.
The complainant also saw a psychiatrist four times between August 1992 and
December 1992, who diagnosed her with panic disorder. The psychiatrist
opined that based on reports by the complainant, the disorder was caused
by harassment from the perpetrator inside and outside the workplace.
The complainant indicated to the psychiatrist that her panic attacks
started in June 1992. One in June 1992 was characterized by confusion,
crying, shaking, difficulty breathing, pounding headache and vomiting over
two to three hours. She apparently had several such attacks between June
1992 and October 1992. One apparent attack in late August 1992 coincided
with depression and suicidal ideation. The psychiatrist observed that
the complainant's emotional pain was intermittent. His notes of the
complainant's visits indicate that by October, the complainant was not
depressed and her overall spirits were fine. Further, the complainant
affirmed that she felt much better in August and September.
From December 1991 through September 1992, the complainant was prescribed
a variety of medicines by her physicians to treat her symptoms.
They primarily included amitriptyline for depression, xanax for anxiety,
lorazepam for sleep and a short course of prozac for depression, which
was discontinued.
On remand, the complainant stated that as a result of harassment by
the perpetrator at work between August 1991 through the end of 1992,
she feared for her personal safety there, and experienced anxiety,
nervousness, depression, fatigue, headache, and just prior to her 10 day
hospitalization suicidal thoughts. Notes of visits by her psychologist,
family physician, and psychiatrist refer to such symptoms. One note
described the depression as coming in waves. All the above symptoms
greatly lessened by August or September 1992, albeit she had several
panic attacks between June and October 1992. The complainant also stated
that the medications made her feel �out of it, � an apparent reference to
being foggy. The complainant's brother suggested this was especially a
problem in the Spring of 1992. The only clear medical reference to the
complainant feeling foggy due to medication was for periods in July and
August 1992.
The complainant also stated that as a result of the workplace harassment,
she sustained hair loss, an ulcer in March 1992, and weight loss. There
is no corroboration in the record of hair loss. Also, as the complainant
later conceded, she was diagnosed in March 1992 with duodenitis, an
inflammation of the duodenum that is a precursor to peptic ulceration.
While her family physician stated this is often due to stress, he also
stated the complainant frequently suffered with duodenitis and peptic
ulceration. The record reflects that the complainant's gastric problems
started when she was age 15. The complainant's family physician opined
that a weight loss by the complainant in January 1992 was likely directly
related to stress. A backup family physician who the complainant saw
in January 1992 noted the complainant had anorexia for which she had
been taking medication over a long term to increase her appetite.
The complainant added that as a result of just being released from the
hospital, she was unable to participate and attend her brother's July 25,
1992 wedding, which has caused her to be sad. While this was likely a
factor, there were likely other factors. During her hospitalization, the
complainant described a recent prior fight with her brother, and said she
had little contact with him since. Moreover, the complainant was able to
return to work on July 24, 1992. She also argued that she was entitled
to damages for injury to her credit rating. She did not pay a bill
of over $4,000 for her hospitalization. But the complainant failed to
show she was unable to pay the bill or work out a payment plan to do so.
She was never unemployed, and in fact received a within grade increase
to GS-9, step 2 in August 1993 and a promotion to GS-11 in March 1994.
The complainant did credibly state that as a result of being hospitalized,
she feared that people viewed her as being unstable.
Damages are not available for acts of discrimination which occurred
prior to the passage of the Civil Rights Act of 1991 on November 21,
1991. Landgraf v. USI Film Products, 511 U.S. 244 (1994). A claim
for emotional harm is seriously undermined if the onset of symptoms
preceded the discrimination. But if a complainant had preexisting
emotional difficulties and her mental health deteriorated because of
the discriminatory conduct, the additional harm may be attributed to
the agency. Compensatory and Punitive Damages Available Under Section
102 of the Civil Rights Act of 1991.
In reducing the complainant's claim for damages, the agency reasoned
that much of her pain and suffering were caused by pre-existing medical
conditions and events that occurred outside the workplace. It referenced,
in part, to the complainant's history of problems with headaches and
four brief bouts of depression which occurred in June 1984, October
1988, February 1989 and June 1989, the earliest of which was treated
with elavil. It also cited the complainant's miscarriage in June 1991,
her testimony at a non-support hearing against the father of her second
child in March 1992, and the death of a close friend in April 1992.
But the medical and other evidence shows that the complainant's depression
and anxiety in 1991 and 1992 were triggered by fear caused primarily by
the perpetrator's harassment, and this resulted in at least some of the
headaches. The evidence does not show that the anxiety and depression in
1991 and 1992 were a continuation of the prior brief bouts of depression.
While the miscarriage and death of a family friend undoubtedly caused
sadness, the record does not show these events contributed much to the
complainant's medical condition of depression.
The agency also argues that the complainant's claim for damages should be
reduced because of her preexisting ongoing history of recurrent duodenitis
and anorexic weight loss, as well as by injury caused from harassment
and contacts with the perpetrator that occurred prior to November 21,
1991 or outside the workplace.<4>
The Commission's policy is to make damage awards for emotional harm
consistent with awards in similar cases. In Olsen v. Department of
Defense, EEOC Appeal No. 01956675 (July 29, 1998), the Commission awarded
the complainant $16,000 for depression, anxiety, sleep deprivation, worry,
marriage and family problems that were caused partly by an at least 14
month pattern of discrimination of unfavorable performance evaluations and
not being selected once for promotion. In Smith v. Department of Defense,
EEOC Appeal No. 01943844 (May 9, 1996), the Commission ordered an award
of $25,000 in nonpecuniary damages where the complainant established
that she suffered emotional distress as the result of a daily hostile
environment sexual harassment over a 33 month period. The complainant
was diagnosed with major depressive disorder, recurrent, and generalized
anxiety disorder. Her symptoms included uncontrolled crying, insomnia,
anxiety, tremors, panic attacks, memory lapses, suicidal tendencies,
and paranoia, resulting in the need for extensive therapy and in 1992
the inability to work for eight months and four hospitalizations.
The Commission limited the complainant's award, reasoning that half of
the period of harassment she endured predated the Civil Rights Act of
1991, and a portion of her emotional harm was caused by factors other
than the sexual harassment.
Some of the most severe acts of harassment by the perpetrator occurred
prior to November 21, 1991, e.g., bruising up the complainant and chasing
her around the office. Prior to November 21, 1991, a number of acts by
the perpetrator occurred in October and November 1991 that caused the
complainant great fear and upset. Further, for months the complainant
was very fearful and anxious about having to testify in the perpetrator's
upcoming child custody hearing in early November 1991. The complainant
was so affected by early actions of the perpetrator that by April 1991 she
developed adjustment disorder with depressed mood with crying spells and
disturbed sleep. Some of the emotional harm the complainant sustained as
a result of events prior to November 21, 1991 certainly continued beyond
that date. The Commission notes that the complainant has had long term
gastric problems, reoccurring duodenitis and anorexic issues which predate
harassment by the perpetrator. While the perpetrator's actions may have
caused some flaring of these conditions, the evidence establishes these
were preexisting conditions which were ongoing in nature.
Moreover, the agency is not liable for the perpetrator's few acts of
harassment outside the workplace occurring after November 21, 1991.
The cardinal principle of damages in Anglo-American law is that of
compensation for the injury caused to plaintiff by defendant's breach
of duty. Carey v. Piphus, 435 U.S. 247, 254-55 (1978). Given the facts
of this case, the complainant has not shown that the agency's breach of
duty was proximately connected to the perpetrator's harassment outside
the workplace after November 21, 1991.
Although the complainant emphasized workplace incidents of harassment
when she was hospitalized, she also referenced the acts by him outside
the workplace. Further, the psychiatrist who diagnosed the complainant's
panic disorder, which apparently started in June 1992, opined it was
caused by the perpetrator harassing the complainant inside and outside
the workplace.
By the same token, the perpetrator's ongoing harassment at work, where
most incidents by him occurred after November 21, 1991, perpetuated
the complainant's emotional harm and contributed to deepening it.
This is evidenced by the fact that within a month or two of the
perpetrator ceasing most of his harassment in early July 1992, most
of the complainant's emotional distress lifted. The distress the
complainant felt from November 21, 1991 to September 1992 was often
severe. It included ongoing feelings of fear punctuated by great alarm;
depression, anxiety, fatigue, instances of weeping, headache, intermittent
panic attacks starting around June 1992 characterized by confusion,
crying, shaking, difficulty breathing, pounding headache, and vomiting;
a major depressive episode in July 1992 for which she was hospitalized,
and occasional bouts of suicidal ideation.
After reviewing the record as a whole, the Commission finds that the
complainant sustained $20,000 in nonpecuniary damages. In arriving at
this figure, we considered the duration and severity of the harm, and
factors other than the agency's discrimination that caused the harm,
and findings in comparable cases. For the most part, the relevant
period of harm is from November 21, 1991, the effective date of the
Civil Rights Act, to September 1992. After this, with the exception
of a panic attack or two, the emotional symptoms connected with the
harassment greatly lessened.
Pecuniary Damages
The complainant requested $8,707.49 in medical expenses which occurred
between December 1991 to December 1992, of which $6,612.05 was for the
10 day hospitalization in July 1992, and $384.94 for medicines mostly
for anxiety, depression, sleep and stomach upset. After examining
the expenses and looking at the medical reports and notes, we find
that one visit to the psychiatrist in December 1992 was connected to
a recent traumatic medical event and not the agency's discrimination.
Hence the $110 requested for this visit is denied. Medical visits for
duodenitis were less connected to the harassment at issue, while visits
for emotional pain were more so. Visits closer in time to November
1991 were more related to acts of harassment that occurred prior to
November 21, 1991, and visits that occurred later were more related to
later workplace harassment. The hospitalization, the biggest medical
expense, was largely precipitated by workplace harassment, albeit the
complainant briefly referenced harassment outside the workplace during
her hospitalization. Given the above, we find that 75% of the requested
medical expense, not including the $110 above, was proximately caused
by the workplace harassment. Hence, the complainant is awarded $6,448.
The complainant requested $132.43 in mileage for visits to health care
professionals. The agency supplemental investigative report concluded
that while the complainant asked to be reimbursed for round trips, all
but three visits were at the beginning or end of workdays she worked,
so she would not have taken round trips. The supplemental report also
concluded that in many instances where the complainant claimed mileage,
the health care professional was en route to the complainant's home or
work, so there was no actual additional mileage. The complainant does not
contest this. Taking all this into account, we find the complainant drove
247 miles visiting health care professionals, of which, as found above,
75% was due to the agency's discrimination, for a total of 185 miles.
The 75% figure is appropriate since more of this mileage was incurred
later in 1992.
The Commission takes official notice that the reimbursement rate the
federal government provided its employees when conducting official
business in a personal automobile from June 30, 1991 through 1994 was
25� a mile. Accordingly, the past pecuniary damages connected with the
mileage is $46.
Leave
Restoration of leave is an equitable remedy that was available prior to
and after the passage of the Civil Rights Act of 1991. The complainant
requests reimbursement for 231 hours of leave used from November 1991
to December 1992, and none prior to that time. This constitutes 110
hours of sick leave, 25 hours of annual leave, and 96 hours of leave
without pay.<5> Of this, about two-thirds was attributed to medical
appointments, the hospital stay, and days off before returning to work
from the hospital, and the remaining was attributed to the harassment,
such as time off for reactions to incidents and needed rest. Ninety-six
of the claimed hours were connected to the hospital stay and days away
from work before being cleared to return after the hospitalization.
The Commission awards restoration of the above annual and sick leave and
back pay for leave without pay at a rate of 80%. While the complainant is
entitled to restoration of all leave taken as a result of any workplace
harassment by the perpetrator from August 1991 to December 1992, some
of the requested restoration was for leave taken because of ongoing
pre-existing medical conditions and harassment by the perpetrator outside
the workplace.
As the complainant is a prevailing party, she is entitled to additional
attorney fees, as ordered below.
CONCLUSION
Based upon a review of the record, and for the foregoing reasons, it
is the decision of the Commission to modify the relief provided by the
agency.
ORDER
(1) The agency must issue the complainant a check for $26,494 for damages,
less any compensatory damages already paid for which the complainant
accepted payment.<6>
(2) The agency must restore to the complainant 88 hours of sick leave
and 20 hours of annual leave.<7>
(3) The agency must issue a check to complainant for the appropriate
amount of backpay and interest on backpay for a 77 hour period of leave
without pay, 26 of which occurred in December 1991 and 51<8> of which
occurred in July 1992, and provide appropriate within-grade increases,
seniority and other benefits under pertinent Office of Personnel
Management Regulations, and 29 C.F.R. �1614.501. The complainant is
ORDERED to cooperate in the agency's efforts to compute the amount
of back pay, interest, and benefits due, and to provide all necessary
information the agency requests to help it comply.
(4) The agency must complete the above actions within 90 calendar days
of the date this decision becomes final.
The complainant may petition for enforcement or clarification of this
order with the Compliance Officer, at the address referenced in the
below 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 must include supporting documentation of the
agency's calculation of backpay and other benefits due complainant,
including evidence that the corrective action has been implemented.
ATTORNEY'S FEES (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.501(e)(1)(iii)), he/she is entitled to
an award of reasonable attorney's fees incurred in the processing of the
complaint. 29 C.F.R. �1614.501(e). The award of attorney's fees shall
be paid by the agency. The attorney shall submit a verified statement of
fees to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. �1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0800)
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)(Supp. V 1993). If the
complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0800)
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 3, 2000
__________________
Date
1The complainant's former name was Amelia M. Fiandaca.
2On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
3This guidance is on the Commission's website at www.eeoc.gov.
4On appeal, the agency also argues that the supplemental investigation
was hampered because the complainant did not submit all the information
which it asked her to provide. But the complainant provided extensive
information, and there is sufficient information in the record to
accurately adjudicate the issues before us.
5It appears the parties placed 3.5 hours annual leave converted from
sick leave in the leave without pay category. We have categorized it
as annual leave.
6This is the sum of $20,000 in nonpecuniary damages, $6,448 in pecuniary
medical expenses, and $46 in pecuniary damages for mileage.
7This are the product of 80% of 110 hours of sick leave and 25 hours of
annual leave.
8These numbers constitute the product of 80% of 96 hours of leave without
pay, 32 of which were taken in December 1991, and 64 of which were taken
in July 1992.