Belinda Webb, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionDec 17, 2009
0120070230 (E.E.O.C. Dec. 17, 2009)

0120070230

12-17-2009

Belinda Webb, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Belinda Webb,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120070230

Agency No. 4F-900-0030-04

DECISION

Complainant filed an appeal with this Commission from an August 28,

2006 agency decision concerning an award of compensatory damages.

ISSUE PRESENTED

The issue is whether the agency properly determined the amount of

non-pecuniary, compensatory damages.

BACKGROUND

Complainant has been before the Commission previously. In a prior

decision, the Commission found that the agency had discriminated against

complainant on the basis of reprisal when it terminated her employment.

Belinda Webb v. United States Postal Service, EEOC Appeal No. 01A54870

(December 21, 2005). In finding discrimination, the Commission noted

that the record was without any independent evidence which would have

explained why complainant was found to have been in violation of a

last chance agreement such that termination of her employment was

appropriate. The Commission, noting the agency's failure to respond

to requests for information and affidavits made by the investigator,

concluded that without any evidence from agency officials regarding

the complaint, the agency had failed to provide an articulation of its

reasons for terminating complainant sufficient to overcome complainant's

prima facie case of reprisal. The Commission found that the Notice

of Removal Letter alone was not sufficient to provide a legitimate,

nondiscriminatory reason for complainant's termination in response to

complainant's complaint of discrimination. The Commission also concluded

that even if the agency had articulated a legitimate, nondiscriminatory

reason for terminating complainant, complainant could establish that the

articulated reason was a pretext for discrimination. The Commission noted

that Commission regulations require any employee of a federal agency to

produce documentary and testimonial evidence as the investigator deems

necessary; that where the agency's employees fail without good cause to

respond fully and in a timely fashion to requests for documents, records,

affidavits or the attendance of witnesses, the Commission on appeal may

draw an adverse inference that the requested testimony of the witness

would have reflected unfavorably on the party refusing to provide the

requested information, or issue a decision fully or partially in favor of

the complainant; and that neither the record nor the agency's arguments

on appeal explained why management officials did not provide the requested

information despite numerous attempts made by the investigator.

As a result of its finding of discrimination, the Commission ordered

the agency to conduct a supplemental investigation on the issue of

complainant's entitlement to compensatory damages. In this regard,

complainant was notified to submit evidence in support of her claim for

compensatory damages within 45 calendar days of the date when complainant

received the agency's notice. The Commission also ordered the agency to

complete its investigation on the claim for compensatory damages within

45 days of the date when the agency received her claim for compensatory

damages.

Complainant submitted a Request for Compensatory Damages with documents

attached, including her affidavit, dated May 11, 2006, and the affidavits

of her mother and her sister. The Request for Compensatory Damages

appears to have been received by the agency on May 18, 2006. In a May

24, 2006 letter to complainant, an investigator requested additional

information from complainant. Complainant submitted a second affidavit,

dated June 7, 2006.

AGENCY'S DECISION

The agency issued a decision on compensatory damages on August 28,

2006. In its decision, the agency awarded complainant $20,000.00 in

pecuniary damages and $15,000.00 in non-pecuniary damages. With regard

to non-pecuniary compensatory damages, the agency determined that

complainant had not provided any medical evidence of any medical or

psychological conditions associated with the alleged discrimination.

With regard to complainant's contention that she was deprived of the

opportunity to seek medical treatment because she had lost her health

insurance after her removal, the agency noted that even after a removal

a former employee retains her health insurance coverage for a period

of a year (or until the removal was finally adjudicated through the

grievance/arbitration process).

The agency concluded that after her termination, complainant still had

access to the Employee Assistance Program (EAP) and argued if she failed

to take advantage of the EAP, it was by her own deliberate choice.

The agency therefore concluded that complainant had the means to seek

medical care after her removal.

Further, the agency stated that complainant's affidavits made the

generalized assertion that she suffered from ongoing loss of self

esteem, depression, grief, anguish, embarrassment, anger, stress,

weight loss, headaches, nausea, sleeplessness, suicidal ideation,

withdrawal from friends, co-workers, and family, and a general loss of

the enjoyment of life as a result of her termination. The agency noted

that no documentation was offered to support this assertion, other than

affidavits from complainant, her mother, and her sister. The agency also

noted that the conditions identified in complainant's affidavit were

a verbatim recitation of the symptoms noted in a Commission decision

Truell v. Department of Army, EEOC Appeal No. 07A30056 (September 30,

2003) which was cited by complainant in her affidavit.

The agency noted that although complainant claimed that she had excelled

in her performance prior to her removal, complainant had had four

disciplinary actions against her, including a letter of warning for

insubordination, a 30-day suspension for the same type of infraction

and for causing a disruption in the workplace, and that she was given

a last chance agreement to save her career.1

In determining that complainant was only entitled to $15,000.00

in non-pecuniary, compensatory damages, the agency noted complainant

failed to provide relevant evidence, medical or otherwise, to indicate

that she suffered from any long-term mental or physical illness;

that the evidence she provided was general in nature and devoid of any

reference to frequency, severity or duration of any physical symptoms

and unsupported by any medical documentation. The agency also noted

that the record did not contain any evidence that complainant was not

able to work based on any of her symptoms and noted further that she

had sought and found employment.

The agency stated in its decision that although complainant asserted that

she experienced effects on her mental health, she failed to identify when

the problems arose, how serious they were, how frequently they occurred,

and how long the effects lasted. The agency acknowledged that the record

did show that complainant's family relationships were impacted based on

statements by her mother and sister that complainant did not participate

in family events as she once did.

In support of its decision, the agency cited Batieste v. Department

of the Air Force, EEOC Appeal No. 01974616 (May 24, 2000) in which

the Commission awarded $12,000.00 in non-pecuniary damages for

a discriminatory termination; Randle-Harris v. United States Postal

Service, EEOC Appeal No. 01A04769 (March 6, 2001), req. to recons. den.,

EEOC Request No. 05A10468 (June 19, 2001) in which the Commission awarded

complainant $15,000.00 based on a discriminatory termination; and Schultz

v. Department of Agriculture, EEOC Appeal No. 01985379 (August 23, 2001)

in which the Commission awarded a probationary employee $2,500.00 in

non-pecuniary, compensatory damages related to her termination.

CONTENTIONS ON APPEAL

On appeal, complainant states that her appeal is limited to non-pecuniary

compensatory damages and that she was seeking an award of $98,000.00 for

emotional harm. Accordingly, we will not address the agency's award in

its decision of $20,000.00 in pecuniary compensatory damages.

Complainant argues that the decisions referenced in the agency decision

to limit its liability for non-pecuniary compensatory damages to

$15,000.00 were not comparable to the circumstances of complainant's case.

On appeal, complainant asserts that her unlawful termination resulted in

her being unemployed for 711 days from November 1, 2003, until December

11, 2005, when she found work with a private sector employer. She also

asserts that she had submitted sworn affidavits evidencing her period

of homelessness and her severe depression over the termination, her

resulting inability to find employment, and her inability to provide for

her small children. In addition, complainant asserts that the agency's

termination was the direct and proximate cause of her inability to obtain

medical care for the treatment of her depression and that the loss of

income and medical insurance deprived her of the ability to seek medical

care. She further asserts that her own testimony established mental or

emotional harm and that it was unconscionable for the agency to belittle

her suffering by faulting her for not obtaining medical treatment.

Complainant asserts that her being unable to obtain medical treatment

should serve to increase, and not decrease, compensatory damages owed

her because she could not obtain the medical treatment she needed.

Complainant contends that being depressed over being passed over for

a promotion or being required to perform unpleasant duties at work

were insignificant conditions when compared with the "horrendous" and

"catastrophic" agony of being unable to feed, clothe, and shelter her

children, not being able to pay her mortgage, or not being able to put

food on the table.

ANALYSIS AND FINDINGS

Compensatory damages may be awarded for losses and suffering due to

the discriminatory acts or conduct of the agency and includes past

pecuniary losses, future pecuniary losses, and non-pecuniary losses

that are directly or proximately caused by the agency's discriminatory

conduct. See Compensatory and Punitive Damages Available Under Section

102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 (July 14,

1992) (Notice) at p. 8. The particulars of what relief may be awarded,

and what proof is necessary to obtain that relief, are set forth in

detail in the Notice.

Complainant must submit evidence to show that the agency's discriminatory

conduct directly or proximately caused the losses for which damages

are sought. Id. at 11-12, 14; Rivera v. Department of the Navy,

EEOC Appeal No. 01934157 (July 22, 1994), req. to recon. den., EEOC

Request No. 05940927 (December 11, 1995). The amount awarded should

reflect the extent to which the agency's discriminatory action directly

or proximately caused harm to the complainant and the extent to which

other factors may have played a part. EEOC Notice No. 915.002 at 11-12.

The amount of non-pecuniary damages should also reflect the nature and

severity of the harm to the complainant, and the duration or expected

duration of the harm. Id. at 14.

Generally, 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. See Damiano v. United States Postal Service,

EEOC Request No. 05980311 (February 26, 1999). Regarding non-pecuniary

damages, such 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) (compensatory damages

determination must be based on the actual harm sustained and not the facts

of the underlying case). A proper award of non-pecuniary damages should

not be "monstrously excessive" standing alone, should not be the product

of passion or prejudice, and should be 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)).

Section 102 (a) of the Civil Rights Act of 1991 (the CRA 1991),

Stat. 1071, Pub. L. No. 102166, codified as 42 U.S.C. � 1981a, authorizes

an award of compensatory damages as part of the "make whole" relief

for intentional discrimination. Compensatory damages do not include

back pay, interest on back pay, or any other type of equitable relief.

Section 1981a(b)(3) limits the total amount of compensatory damages

which 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

number of persons employed by the respondent employer. The limit for an

employer with more than 500 employees, such as the agency, is $300,000.00.

42 U.S.C. � 1981a (b)(3)(D).

There is no precise formula for determining the amount of damages for

non-pecuniary losses, except that the award should reflect the nature and

severity of the harm and the duration or expected duration of the harm.

The Commission has held that an award of non-pecuniary compensatory

damages must be predicated on the harm experienced as a result of the

agency's actions; the extent, nature, and severity of the harm suffered;

and the duration or expected duration of the harm. Loving v. Department

of the Treasury, EEOC Appeal No. 01955789 (August 29, 1997); Rountree

v. Department of Agriculture, EEOC Appeal No. 01941906 (July 7, 1995);

Rivera v. Department of the Navy, EEOC Appeal No. 01934156, supra.

In Carle v. Department of the Navy, the Commission explained that

"objective evidence" of non-pecuniary damages could include a

statement by complainant explaining how complainant was affected by

the discrimination. Carle, EEOC Appeal No. 01922369 (January 5, 1993).

Objective evidence may include statements from the complainant concerning

the emotional pain or suffering, inconvenience, mental anguish, loss

of enjoyment of life, injury to professional standing, injury to

character or reputation, injury to credit standing, loss of health,

and any other nonpecuniary losses that are incurred as a result of the

discriminatory conduct. Sinnott v Department of Defense, EEOC Appeal

No. 01952872 (September 19, 1996). Statements from others, including

family members, friends, and health care providers could address the

outward manifestations or physical consequences of emotional distress,

including sleeplessness, anxiety, stress, depression, marital strain,

humiliation, emotional distress, loss of self-esteem, excessive fatigue

or a nervous breakdown. Id. Objective evidence also may include

documents indicating a complainant's actual out-of-pocket expenses

related to medical treatment, counseling and so forth, related to the

injury allegedly caused by discrimination. Id.

Evidence from a health care provider or other expert is not a mandatory

prerequisite for recovery of compensatory damages for emotional harm.

Lawrence v. United States Postal Service, EEOC Appeal No. 01952288

(April 18, 1996). The more inherently degrading or humiliating

the agency's actions are, the more reasonable it is to infer that a

person would suffer humiliation or distress from that action. Id.

Consequently, somewhat more conclusory evidence of emotional distress

will be acceptable to support an award for emotional damages. Id.

Nevertheless, the absence of supporting evidence may affect the amount

of damages appropriate in specific cases. Id. In determining damages,

the agency is only responsible for those damages that are clearly shown

to be caused by the alleged discriminatory conduct, not for any and all

damages in general. See Rountree, supra.

In her Request for Compensatory Damages, complainant stated that she

experienced emotional pain and suffering, loss of self esteem; depression;

grief; mental anguish; embarrassment; anger; stress; weight loss;

loss of health including headaches, nausea, and sleeplessness; suicidal

ideation; inconvenience, withdrawal from friends, co-workers and family;

and a general loss of enjoyment of life during the two and one-half

years following her discriminatory termination. Complainant further

asserts that she lost her home due to inability to pay her mortgage;

had her credit ratings destroyed due to nonpayment of her bills as a

result of unemployment; and experienced the disgrace, belittlement,

and humiliation of being thought of as being unworthy of employment by

prospective employers who simply assumed that the agency was justified

in terminating her. She asserts that these conditions caused her

considerable anxiety and depression while she also worried about and

struggled to provide for her children.

To support her Request for Compensatory Damages, complainant cited

Commission decisions in which she asserts the circumstances were

comparable to her own or usable as a guide to reach a reasonable award.

Complainant noted that she arrived at the request of $98,000.00 by

averaging the amounts awarded in four Commission cases and then reducing

the amount by $5,000.00.2 Specifically, complainant cited Franklin

v. United States Postal Service, EEOC Appeal Nos. 07A00025 and 01A03882

(January 19, 2001) in which the Administrative Judge awarded $150,000.00;

Truell v. Departmnent of the Army, EEOC Appeal No. 07A30056 (September

3, 2003) in which complainant was awarded $95,000.00; Hicks v. United

States Postal Service, EEOC Appeal No. 07A10020 (September 26, 2003)

in which the Commission awarded $70,000.00 and Johnson v. Department of

Interior, EEOC Appeal No. 01961812 (June 18, 1998) in which complainant

was awarded $35,000.00.

In her affidavits contained in the record, complainant stated that

she had never been a sickly person but that the treatment that she

received from her supervisor and the subsequent termination weighed

heavily on her mind and that she became depressed and began feeling

constantly ill. She also stated that she also began having intense

headaches and backaches; her digestion became uncomfortable; and she

experienced repeated bouts of nausea. Complainant also stated that

she became nervous and irritable and her nervousness and irritability

were aggravated by frequent insomnia. She stated that feeling sick,

she sought to be alone; that she was easily aggravated by the slightest

thing; and that she could no longer tolerate being around other people.

Complainant stated that she could not really talk about how she felt

because she did not believe that anyone would truly understand.

Complainant further stated in her affidavits that she lost her sense of

self and of who she was. Her sense of security and value were taken and

"tossed out the window as if [she] had passed from warm summer to harsh

winter in the space of a few minutes."

Complainant stated that she was "horrendously depressed" after being

terminated, that she pushed herself on a "daily basis" to find work

because she needed to provide for her children. She also stated that

no one would hire her, stating that potential employers assumed that

she was fired by the agency for just cause and that she was a terrible

employee. She stated that the bad reference from the agency followed

her everywhere.

Complainant stated in her affidavits that prior to her termination,

she had perfect credit but that her credit status changed as the result

of her termination. She also stated that her credit was completely

"messed up." Complainant stated that after her termination, she began

receiving harassing phone calls two and three times a week and more from

a bill collector who claimed that she owed money to the agency because

of her sick and annual leave time and the bill collectors were rude

and unwilling to listen to her. Complainant stated also that by the

time she won her fight for unemployment benefits, she had already begun

slipping behind in paying her bills. She stated that while receipt of

unemployment benefits helped her, the benefits were nowhere near what

her income would have been had she remained employed by the agency.

Complainant also stated that she was engaged in a game of catch up and

that dealing with bill collectors was emotionally draining and painful to

her, especially given the fact that her situation was not caused by her.

Complainant stated in her affidavits that she had worked long and hard

to save money to buy a home and that it was especially frustrating to

her was that she was forced to fall behind in her mortgage payments and,

with the unpaid mortgage notes accumulating, she ended up on the verge

of foreclosure. Complainant stated that she had to use the money from

the sale of her home to live and that she was forced to start renting an

apartment at a monthly rate "considerably higher" than her mortgage note;

that she had "to pay other bills," put food on the table and clothing

on her children's backs. She stated that her circumstances became a

constant gnawing worry because she had no income coming in, and the

money obtained from the sale of her home was steadily dwindling away.

She stated that when she now sees a "for sale" sign in front of a house,

she begins to cry, wondering about her home and whether she will ever

recover enough to be able to afford a home of her own. Complainant stated

that having to explain to her children that they were losing their home

was one of the most painful and humiliating things she has ever done.

Complainant stated that one month after her termination, her medical

insurance from work was canceled, leaving her and her children without

medical insurance.

In her affidavits, complainant further stated that she had been always

been an independent person and took pride in always doing her best and

through hard work, she had always excelled in everything. She further

stated that she felt like the people in the Hurricane Katrina disaster

must have felt. Complainant stated that it was absolutely devastating

to have her world snatched away from her. Knowing that she did nothing

to deserve what happened to her only intensified the pain. She stated

that her greatest humiliation was her having to borrow from her family

and friends just to survive and having to have done so made her feel

like a complete failure.

The record also contains the affidavits of complainant's mother and

her sister. Describing the impact of the agency's termination of

complainant, complainant's mother stated that the impact was as if a

massive meteor fell on Washington, D.C, in the middle of a workday.

She further stated that the trauma inflicted on complainant fell only

just short of the trauma of utter destruction and death. Complainant's

mother stated that following complainant's termination that she was

"irredeemably" depressed. She also stated that complainant had been

sociable and outgoing, intensely family-oriented, and was the driving

force behind family gatherings and that complainant had become moody

and withdrawn and was "forever" complaining of headaches. Complainant's

mother stated that complainant wanted to be left alone and had not been

that way before her termination. She also stated that complainant's

withdrawal and resistance to all contact intensified after she lost her

home because she could not pay her mortgage.

In her affidavit, complainant's sister described the difference in

complainant following her termination as "great as the difference between

cloudless noon on a mid-summer's day and starless & moonless midnight

on a mid-winter's night." She stated that the agency beat the joy of

life out of her sister.

Complainant's sister also stated that she babysat for complainant's

children right after complainant was terminated, while complainant

looked for work daily. She stated that after complainant's termination,

she withdrew from everyone and everything and stopped engaging in

social activities with her family and friends. Complainant's sister

also stated that complainant's withdrawal from her family and friends

was so complete that the family did not know when complainant lost her

home due to inability to make the payments. She stated that when she

either dropped in on complainant or called her on the telephone, it was

frequently obvious that complainant had been sitting alone in the dark

crying. Complainant's sister stated that complainant began complaining of

intense headaches and back pain to the point where she found it difficult

to get out of bed. She stated that if she (complainant's sister) turned

on the light, complainant would cover her eyes and scream out in pain.

Complainant's sister stated further that losing her home was a tremendous

loss to complainant who had worked long and hard to buy her own home,

in which complainant had experienced a tremendous amount of pride and

that it was now quite doubtful whether complainant would be able to

afford to buy another home.

She stated also that complainant was more depressed then than she

had ever seen her throughout her life and that despite the depression,

complainant pushed herself for the sake of her kids. Complainant's sister

stated that things worsened for complainant and that when complainant

admitted to prospective employers that she was terminated by the agency,

interviewers turned her away and complainant would return home after

hours of looking for work and cry herself to sleep. She also stated that

as the situation worsened, complainant sank deeper into depression and

that had it not been for complainant's love of her kids, she believed

that complainant would have given up completely. Complainant's sister

further stated that there were times when complainant started talking

about being worth more to her kids dead than alive because of insurance

money, and that she was deeply afraid that complainant was suicidal.

She stated that even after complainant began working for a private sector

employer, her attitude improved only slightly.

The agency does not dispute that complainant is entitled to non-pecuniary

compensatory damages as a result of its discrimination, having awarded

complainant damages of $15,000.00 in its decision. The agency disagrees

with the amount that complainant requests. The agency acknowledges

that the incident was a single, discrete act with effects lasting from

approximately November 3, 2003, until December 21, 2005, allowing some

additional time for back pay and compliance.

The Commission finds that complainant has submitted sufficient evidence

to establish that she suffered emotional distress, depression, and some

related physical symptoms as a result of the agency's discriminatory

termination. The Commission notes that damage awards for emotional harm

are difficult to determine and there are no definitive rules governing

the amount to be awarded in given cases. Nonetheless, in determining the

amount of a compensatory damages award, we are guided by the principle

that a compensatory damages award is limited to the sums necessary

to compensate complainant for the actual harm caused by the agency's

discriminatory action and attempt to affix a reasonable dollar value

to compensate complainant for that portion of her emotional distress

and related symptoms which were caused by the agency's discrimination.

See EEOC Notice, supra, at 13.

Complainant's affidavits reflect that she became depressed and experienced

other emotional distress stemming from the discriminatory termination.

Statements from complainant's mother and sister describe the impact of

the discrimination on complainant and her relationship to her family.

Complainant was concerned about being able to provide for her children

and was not as socially interactive as she had been previous to the

unlawful termination. In addition, we find that complainant was unable

to obtain medical care to treat her depression because of the loss of

her health insurance when she was terminated.

Nonetheless, complainant has not provided sufficient probative evidence to

support her request for $98,000.00. The record indicates that complainant

has since become employed and there is scant evidence, other than her

sister's statement, that she continues to suffer or evidence supportive

of the severity and extent of any continued health issues. There is no

evidence of any health difficulties in her new employment or evidence

that complainant has sought medical treatment for any condition now that

she is working.

Although complainant stated that she also experienced emotional harm

by having to sell her home in January 2004, because of the unlawful

termination and that she worried about her inability to provide for

her children, we find no evidence complainant was homeless. Further,

complainant's own affidavits reflect that she was renting an apartment

after she sold her home.

In addition, although complainant asserts that she was rejected by

prospective employers because she was terminated by the agency and that

their rejections or failure to consider her for employment also caused her

to suffer emotionally, complainant has provided no evidence, other than

her statement and that of her sister, of any rejection letters received

during the period when she would have been searching for employment

or any evidence that the agency supplied a poor reference. Moreover,

concerning her emotional health, complainant's sister stated that

immediately after her termination complainant had looked for work daily.

Moreover, complainant has not provided any documentation regarding her

reduced credit ratings.

In the instant case, taking into account the evidence of non-pecuniary

damages submitted by complainant, the Commission finds that complainant

is entitled to non-pecuniary, compensatory damages in the amount of

$20,000.00. There is sufficient evidence to show that the emotional

distress and other physical symptoms suffered by complainant are

comparable to those described in other Commission cases: Telles

v. United States Postal Service, EEOC Appeal No. 01994535 (January

30, 2002) ($20,000.00 award for non-pecuniary, compensatory damages

where complainant discriminatorily terminated and suffered depression,

feelings of inadequacy and failure, loss of credit due to bankruptcy,

and marital problems); Colwell v. United States Postal Service, EEOC

Appeal No. 01985789 (June 13, 2001) ($20,000.00 award for non-pecuniary,

compensatory damages where complainant discriminatorily terminated and

suffered depression and emotional distress, loss of credit standing and

loss of professional standing). An award of $20,000.00 meets the goals

of not being motivated by passion or prejudice, not being "monstrously

excessive" standing alone, and being consistent with the amounts awarded

in similar cases. See Cygnar, supra.

CONCLUSION

The agency's decision is MODIFIED and the agency is instructed to comply

with the Order listed herein.

ORDER

Within 30 days of the date this decision becomes final, the agency shall

take the following actions:

(1) Pay complainant $20,000.00 in non-pecuniary, compensatory damages,

less any payments previously made for non-pecuniary, compensatory

damages.

(2) Pay complainant $20,000.00 in pecuniary damages, to the extent it

has not already done so.

The agency is further directed to submit, within 45 days of the date

this decision becomes final, a report of compliance, as provided in

the statement entitled "Implementation of the Commission's Decision."

The report shall include supporting documentation verifying that the

corrective action has been implemented. The report must be sent to the

Compliance Officer as referenced herein.

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 (K1208)

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 77960, Washington,

DC 20013. 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 (M1208)

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 77960,

Washington, DC 20013. 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 (R0408)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court within ninety (90) calendar days from the date

that you receive this decision. In the alternative, you may file a

civil action after one hundred and eighty (180) calendar days of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. If you file a civil action, you must name as the defendant

in the complaint the person who is the official agency head or department

head, identifying that person by his or her full name and official title.

Failure to do so may result in the dismissal of your case in court.

"Agency" or "department" means the national organization, and not the

local office, facility or department in which you work. Filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1008)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with

the Court 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

December 17, 2009

__________________

Date

1 In another appeal which was before the Commission and in which

the Commission found that the agency had not discriminated against

complainant, we noted that the agency had presented evidence supporting

a determination that complainant was charged with absence without leave,

issued 7-Day and 14-Day No Time-Off Suspensions, and given official

discussions for insubordination, failure to follow instructions, failure

to report for work as scheduled, leaving work without authorization,

and providing unacceptable medical documentation. See Webb v. United

States Postal Service, EEOC Appeal No. 01A41021 (April 8, 2004).

2 The Commission notes that complainant provided no authority to support

its averaging approach.

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0120070230

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120070230