David Wilson, Complainant,v.Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionFeb 28, 2000
01971629 (E.E.O.C. Feb. 28, 2000)

01971629

02-28-2000

David Wilson, Complainant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.


David Wilson v. Social Security Administration

01971629

February 28, 2000

David Wilson, )

Complainant, )

) Appeal No. 01971629

v. ) Agency Nos. SSA-183-93

)

Kenneth S. Apfel, )

Commissioner, )

Social Security Administration, )

Agency. )

)

DECISION

INTRODUCTION

Complainant filed a timely appeal with this Commission challenging

the final decision of the Social Security Administration (agency)

on compensatory damages concerning his complaint of discrimination in

violation of �501 of the Rehabilitation Act of 1973, as amended, 29

U.S.C. �791 et seq.<1> The appeal is accepted in accordance with EEOC

Order No. 960.001.

ISSUE PRESENTED

The issue on appeal is whether the agency's final decision properly

determined that complainant was entitled to an award of compensatory

damages in the amount of $4,612.50 for the agency's previous finding of

race discrimination.

BACKGROUND

In a formal complaint, complainant alleged that he was discriminated

against on the basis of his physical disability (Carpal Tunnel Syndrome)

when by memorandum dated August 17, 1992, the agency's management denied

his request for reasonable accommodation. Following a hearing, an EEOC

administrative judge issued a recommended decision on July 5, 1994,

finding no discrimination. The agency subsequently adopted the AJ's

finding of no discrimination in a final agency decision dated August 4,

1994. Thereafter, complainant appealed to the Commission's Office of

Federal Operation (OFO). On March 7, 1996, OFO issued a decision (EEOC

Appeal No. 01945850) reversing the agency's finding of no discrimination.

OFO found that complainant had been discriminated against as a result of

the agency's failure to accommodate complainant's Carpal Tunnel Syndrome.

As a remedy, OFO ordered the agency to award complainant back pay and

benefits from the period of September 24, 1992 (the date complainant

began working part-time) until the OFO's decision became final (March 7,

1996). In addition, OFO ordered the agency to conduct a supplemental

investigation into complainant's claim for compensatory damages.

On August 6, 1996, complainant submitted a claim for compensatory damages

totaling $200,400.00 as follows:

Pecuniary Losses

Aspirin $ 100.00

Mileage $ 300.00

Non-Pecuniary Losses

Aggravation and Exacerbation of $160,000.00

Carpal Tunnel Syndrome; Emotional

Distress

Loss of Earnings, employment benefits, $ 40,000.00

& future earnings. (1992-1995) $10,000 per year.

Following complainant's submission of supplemental information and the

agency's expert's review of complainant's medical evidence, the agency

concluded that complainant was entitled to an award of $4,612.50 for

compensatory damages in a final decision dated November 14, 1996.

In its final decision, the agency essentially determined that

complainant's request for compensatory damages in the amount of

$200,400.00 was unsubstantiated by the evidence submitted by complainant.

Based on the evidence submitted by complainant, the agency concluded

that complainant was entitled to pecuniary damages in the amount of

$112.50 for reimbursement for mileage complainant incurred for five

round trip medical visits during the period of September 2, 1992 to

October 28, 1992. In addition, the agency awarded complainant the sum of

$3,500.00 for the aggravation of his Carpal Tunnel Syndrome condition,

and $1,000.00 for emotional distress suffered as a direct cause of the

discriminatory action. The agency denied complainant's request for

out-of-pocket medical expenses in the amount of $300.00 for aspirin and

also denied complainant's claim for past and future pecuniary losses

described as loss of earnings, employment benefits and future earning.

On appeal, complainant disagrees with the agency's award and contends that

his compensatory damages claim was more than substantiated by his medical

documentation and testimonial evidence. In support of his compensatory

damages claim, complainant submitted his affidavit dated May 6, 1996,

and affidavits from his mother and wife. Complainant also provided

several letters from physicians who have treated him for his Carpal

Tunnel Syndrome.

ANALYSIS AND FINDINGS

Section 102(a) of the Civil Rights Act of 1991 (CRA 1991), 105 Stat. 1071,

Pub. L. No. 102-166, codified as 42 U.S.C. � 1981A, authorizes an award

of compensatory damages as part of make-whole relief for intentional

discrimination in violation of Title VII, of the Civil Rights act of

1964 as amended. EEOC Notice No. N 915.002 at 8 (July 14, 1992); See

West v. Gibson, 119 S.Ct. 1906 (1999).

"[C]ompensatory damage awards must be limited to the sums necessary

to compensate [a complainant] for actual harm, even if the harm is

intangible." Id. at 13 (citing Carter v. Duncan-Higgins, Ltd., 727 F. 2d

1225 (D.C. Cir. 1984)). Thus, a compensatory damages award should

reimburse a complainant for proven pecuniary losses, future pecuniary

losses, and nonpecuniary losses.

The seminal Commission decision regarding the proof of entitlement

to compensatory damages is Carle v. Department of Navy, EEOC Appeal

No. 01922369 (January 5, 1993). In Carle, the Commission described the

type of objective evidence that an agency may obtain when assessing the

merits of a complainant's request for emotional distress damages.

In the instant case, complainant's claim for compensatory damages

involves both pecuniary and non-pecuniary losses. Pecuniary losses

are out-of pocket losses that occurred prior to the date of resolution

of the damage claim and those out-of pocket losses that are likely to

occur after conciliation of the claim. Non-pecuniary losses are losses

that are not subject to precise quantification, i.e. emotional pain,

suffering, inconvenience, mental anguish, loss of enjoyment of life,

injury to professional standing, injury to character and reputation,

injury to credit standing, and loss of health. EEOC Notice No. N 915.002

at 10 (July 14, 1992).

Medical Expenses

Complainant asserts that he is entitled to $100.00 for out-of-pocket

medical expenses. In support of his claim he asserts that his medical

documentation shows that he experienced a history of headaches for which

he took aspirin and Tylenol for relief. We find complainant's testimony

and medical evidence do not provide the requisite proof for objective

evidence which would establish a connection between the agency's

action and complainant's medical expense. In support of our finding,

we note that complainant admits that he did not maintain records or

receipts regarding his out-of-pocket medical expenses. Additionally,

we find that complainant's medical documentation does not provide any

evidence that the submitted expense records were related to a medical

condition that resulted from the agency's failure to provide complainant

with a reasonable accommodation during the period of August 1992 until

the date he resigned (February 2, 1995). Also, we find no evidence in

the record which would support complainant's assessment that he paid

$100.00 for aspirin.

Mileage Expenses

The Commission agrees with the agency's calculation of its award of

$112.50 to complainant for additional mileage expenses (mileage/gas

for medical treatment and examinations) he incurred as a result of the

discriminatory actions which lead to the aggravation and exacerbation

of his carpal tunnel syndrome. Again we note that complainant admits

that he did not maintain records or receipts regarding these expenses.

Therefore, due to the speculative nature of these expenses, we find the

agency's award reasonable.

Non-Pecuniary Damages

Complainant also asserts that he is entitled to $200,000.00 for

non-pecuniary damages. He describes these damages as aggravation and

exacerbation of Carpal Tunnel Syndrome, emotional distress, and loss of

earnings, employment benefits and future earning potential.

Regarding complainant's request for compensation for loss of past

earnings, we note, that Section 1981(b)(2) indicates that compensatory

damages do not include back pay, interest on back pay, or any other

type of equitable relief authorized by Title VII. We find that lost

earnings is an equitable remedy and is not included under "compensatory

damages." See Bever v. USDA, EEOC Appeal No. 01953949 (October 31, 1996).

Also we note that complainant's lost earnings and employment benefits

were addressed in the agency's back pay award. The agency awarded and

paid complainant a gross amount of $31,976.49 for back pay and $2,672.64

for his annual leave (employment benefits) for a total of $34,649.13.

In addition, the agency determined that complainant was entitled to a

net amount of $12,787.39 as compensation for his earnings from Worker's

Compensation.

Complainant contends that as a result of the agency's failure to provide

him with a reasonable accommodation, he was forced to resign and thereby

suffered a significant loss in future income. Complainant additionally

claims that he is no longer marketable in the computer industry and is

unlikely to find comparable employment given his permanent and progressive

medical disability and work restrictions. Moreover, complainant contends

that his inability to use his hands for any relative length of time and the

need for regular breaks makes him less, if not entirely, unmarketable.

First, we note that complainant's contention that he was forced to

resign by the agency is in essence a constructive discharge claim.

We find that this claim is not like or related to any matter that is

before us or that was decided by OFO in its March 7, 1996, decision

finding discrimination. See 29 C.F.R. �1614.107(b) Therefore, we will

not address this matter in this decision, but advise complainant that

if he wishes to pursue this matter he should contact an EEO counselor.

Second, we find that what opportunities complainant may have in the

future or how his career continues to unfold are dependent on too many

variables, many (if not most) of which are unrelated to the agency's

failure to provide him with a reasonable accommodation. For instance,

complainant has been diagnosed with permanent Carpal Tunnel Syndrome.

He developed this condition absent any wrongdoing by the agency.

In the instant action, and based on our review of OFO's decision,

we find that complainant is entitled to only those damages resulting

from the agency's failure to accommodate his condition during the time

period of August 1992 until the date complainant resigned, February 6,

1995, and is not responsible for any and all damages resulting from the

condition in general. See Rountree v. Department of Agriculture, EEOC

Appeal No. 01941906 (July 7, 1995), affirmed, EEOC Request No. 05950919

(February 15, 1996). Also, we find that complainant provided no objective

evidence to support his contention that he is no longer marketable for

computer jobs. For example, complainant did not specifically identify

any computer positions that he was not selected for as a result of

the agency's failure to provide a reasonable accommodation. Finally,

we find no evidence that complainant could not have continued working

with the agency once it supplied him with the reasonable accommodations

ordered by OFO. Based on these findings, we conclude that complainant

has not proven his entitlement to future earnings.

Aggravation and Exacerbation of Carpal Tunnel Syndrome

We find that complainant's medical documentation provided the requisite

connection to support his entitlement to nonpecuniary damages for the

aggravation and exacerbation of his Carpal Tunnel Syndrome which occurred

as a direct result of the agency's failure to provide complainant with a

reasonable accommodation on August 18, 1992. However, we find that the

agency's award of $3,500 is an appropriate award for relief. We base

our finding on the evidence that follows.

According to the record, during the time period of February 2, 1992,

until August 17, 1992, complainant worked a modified work schedule that

allowed him 30 minutes on and 90 minutes off CRT and telephone duty.

Under this modified work schedule, complainant's Carpal Tunnel symptoms

abated. On August 18, 1992, complainant returned to his full-time

duties as a Teleservice Center Representative without restrictions

in his modified work station the agency provided as an attempt to

accommodate complainant's condition. Complainant's full-time regular

duties consisted of answering telephone inquiries from the public, which

entailed a combination of hand writing, consulting, reference binders,

and typing information into the computer. Normally, complainant fielded

approximately 80 inquiries per day. Upon returning to his full-time

regular duties under the agency's less than perfect accommodations,

complainant's symptoms, which had abated, returned. Commencing September

24, 1992, complainant began working only four hours per day. In December

1992, the agency reassigned complainant to work as a union steward;

complainant worked only four hours per day. The Office of Workers'

Compensation Programs (OWCP) accepted complainant's Carpal Tunnel

Syndrome as work-related, and paid complainant wage-loss benefits for

the periods of time he was unable to work eight hours per day. We note

that this evidence shows that more than one variable may have played

a role in exacerbating complainant's condition. While we acknowledge

the agency's failure to provide adequate accommodations by providing a

modified work station that met the prescribed arrangement complainant's

physician suggested, we cannot ignore the fact that complainant also

returned to his normal duties without any restrictions. We find that

complainant's return to his full-time regular duties are a relevant

factor that must be considered in assessing the amount of damages that

resulted from the agency's actions. Furthermore, we find that OWCP's

Orthopedic Surgeon who examined complainant on September 23, 1992,

noted that complainant's condition was attributable to his usual and

customary occupation and fell short of apportioning any exacerbation of

complainant's condition to the agency's failure to provide the adequate

modifications for his work station. Finally, contrary to complainant's

contentions, we find that the Orthopedic Surgeon's October 28, 1992,

evaluation of complainant does not clearly support a finding that his

nerve conduction studies which revealed a "probable mild bilateral

carpal tunnel syndrome" constitute evidence of an exacerbation of

complainant's Carpal Tunnel Syndrome. Once again the Surgeon, though

finding complainant's condition permanent and stationary as of October 28,

1992, does not clearly attribute complainant's condition to the agency's

failure to provide him with a adequate reasonable accommodation.

At most we find that complainant's medical documentation supports

a finding that complainant's condition worsened when he resumed his

full-time regular duties. Whenever complainant ceased these duties,

his symptoms appeared to have abated. We note that complainant's

condition is generally referred to as mild, and we note that the

surgeon's comments in both of his evaluations reveal that he found "few

physical findings that correlate to complainant's subjective complaints."

The surgeon further comments, that complainant's complaints "appear to

be activity related, and once that specific activity has ceased, his

symptoms resolve." Considering this evidence, we agree with the agency's

assessment that aggravation of complainant's injury was temporary in

duration and mild in severity.

Emotional Distress

Finally, we conclude that complainant's affidavit, and the affidavit

from his wife are sufficient to support complainant's claim that he

suffered emotional distress as direct cause of the agency's failure to

provide adequate reasonable accommodations for his Carpal Tunnel Syndrome.

However, we find that complainant's mothers' affidavit and the affidavit

from a physician that treated complainant in 1991, provides no relevant

information in support of the time period in question (August 18,

1992 until September 2, 1992) during which the agency failed to provide

complainant with an adequate reasonable accommodation. Their testimony

essentially deals with complainant's development of Carpal Tunnel Syndrome

in 1991. As we stated before, complainant developed this condition as

a result of the repetitive duties of his regular work as a Teleservice

Center Representative and not because of any wrongdoing by the agency.

Moreover, 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 damages in general. See Bever v. Department of

Agriculture, EEOC Request No. 01953949 (October 31, 1996).

We note that complainant's wife testified that complainant is no longer

able to perform simple tasks such as tightening screws, bringing in

groceries, carrying their children, carrying infant carriers, diapers,

clothes, etc. In addition, complainant's wife states that complainant

is not able to perform virtually any other tasks that requires strain

on his wrists, or strength from his fore arms and arms. She further

states that she can no longer rely on complainant to perform the everyday

tasks that he performed prior to his injury. Regarding, complainant's

emotional state, his wife testified that he is very frustrated and that

his relationship with their children have been impacted by complainant's

condition.

In support of his emotional distress claim, complainant testified that

he experienced six months of withdrawal and despondency (including

feeling "very depressed") with increased fatigue and feeling of a lack

of self worth as a result of the agency's failure to accommodate him.

The agency awarded complainant a sum of $1,000 based on their assessment

that complainant's complaint of aggravation of his medical condition

failed to provide any credible evidence to prove that his emotional

distress was caused by discrimination rather than distress over his Carpal

Tunnel Syndrome, other health issues such as his inability to exercise

due to limitations related to his condition, medication side effects,

or family issues including his physical inability to hold his children.

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 him for that portion of his emotional distress that

was caused by the agency's discrimination. EEOC Notice No. N 915.002

at 13.

We further note that damage awards for emotional harm are difficult to

determine and that there are no definitive rules governing the amount

to be awarded in given cases. In this regard, the Commission finds

that a proper award must meet two goals: that it not be "monstrously

excessive" standing alone, and that it be consistent with awards made

in similar cases. See Cygnar v. City of Chicago, 865 F.2d 827, 848 (7th

Cir. 1989); EEOC v. AIC Security Investigations, Ltd., 823 F. Supp. 571,

574 (N.D. Ill. 1993).

There have been recent Commission decisions awarding nonpecuniary

damages for emotional harm similar to that experienced by complainant.

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

(April 18, 1996), the Commission authorized an award of $3,000 in

compensatory damages for emotional harm where complainant averred that

she suffered from weight loss, nausea, stomach problems and headaches

as a result of sexual harassment and the agency's failure to respond

promptly to her allegations. In White v. Department of Veterans Affairs,

EEOC Appeal No. 01950342 (June 13, 1997), the Commission ordered an award

of $5,000 in nonpecuniary damages where the complainant's testimony and

his psychologist's report indicated that the harassment that complainant

endured, which took both sexual and nonsexual forms, led complainant to

suffer from anxiety, depression, emotional fatigue, occasional nightmares,

and insomnia.

Also, in Rountree v. Department of Agriculture, EEOC Appeal No. 01941906

(July 7, 1995), affirmed, EEOC Request No. 05950919 (February 15, 1996),

the Commission ordered an award of $8,000 in nonpecuniary damages where

the complainant's statement and psychologist's report indicated that some

of the complainant's emotional distress, including feelings of inadequacy,

failure, and depression, were the result of a discriminatory performance

appraisal and the denial of bonus pay based on that appraisal.

Finally, in Demeuse v. United States Postal Service, EEOC Appeal

No. 01950324 (May 22, 1997), the Commission ordered an award of $1,500.00

for emotional distress after concluding that complainant suffered

embarrassment and humiliation as the result of discriminatory harassment

or hostile environment based on complainant's mental disability, when

his supervisor "frisked" him for weapons while he was walking to his

work area.

Having carefully considered the facts of this case, the Commission

finds that an award of $2,000.00 in compensatory damages is a proper

award for the emotional harm complainant suffered as a result of

the discriminatory action in this case. In reaching this amount,

the Commission has considered a number of factors. For example, we

considered the nature and severity of the discrimination, as well as

the nature and severity of complainant's emotional pain and suffering.

We considered the evidence concerning complainant's emotional distress

received from complainant's affidavit, his wife's affidavit, and the

lack of objective evidence supporting his emotional harm. Additionally,

we considered the amounts awarded in similar cases.

Accordingly, based on the foregoing, the agency's decision awarding

complainant compensatory damages is affirmed regarding damages assessed

for complainant's medical expenses, mileage, past and future earnings and

benefits and non-pecuniary damages for the aggravation and exacerbation

of complainant's Carpal Tunnel Syndrome.

The agency's decision awarding damages in the amount of $1,000.00 for

complainant's emotional distress is vacated. In accordance with this

decision, the agency is ordered to comply with the following order.

ORDER

The agency is ORDERED to take the following remedial action:

(1) Within thirty (30) days of the date on which this decision becomes

final, the agency shall tender to complainant nonpecuniary compensatory

damages in the amount of $5,612.50.

(2) Complainant is entitled to an award of reasonable attorney's fees

incurred with respect to the compensatory damages issue as provided in

the statement entitled "Attorney's Fees."

(3) The agency is further directed to submit a report of compliance, as

provided in the statement entitled "Implementation of the Commission's

Decision." The report shall include supporting documentation verifying

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 (K1199)

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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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 (R1199)

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 (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:

February 28, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

Date Equal Employment Assistant

1On 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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.