Amelia M. Canino, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionOct 3, 2000
01983857 (E.E.O.C. Oct. 3, 2000)

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.