01983326
03-30-2000
Keith Beck, Complainant, v. Janet Reno, Attorney General, Department of Justice, (Federal Bureau of Prisons), Agency.
Keith Beck v. Department of Justice
01983326
March 30, 2000
Keith Beck, )
Complainant, )
) Appeal No. 01983326
v. ) Agency No. P-95-8687
) Hearing No. 340-96-3843X
Janet Reno, )
Attorney General, )
Department of Justice, )
(Federal Bureau of Prisons), )
Agency. )
____________________________________)
DECISION
On March 23, 1998, complainant initiated an appeal challenging the
agency's failure to act on his request for compensatory damages and
failure to tender payment of back pay and agreed attorney's fees arising
from his complaint of discrimination in violation of Section 501 of the
Rehabilitation Act of 1973, as amended, 42 U.S.C. � 791 et seq.<1> On
April 1, 1998, the agency issued a decision denying complainant's request
for compensatory damages.<2> The appeal is accepted pursuant to 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. � 1614.405),
as amended, as an appeal of the agency's denial of compensatory damages
and alleged failure to tender payment of back pay and attorney's fees.
For the reasons set forth below, the agency's decision is REVERSED
and REMANDED.
ISSUES PRESENTED
The issues on appeal are (1) whether the agency's final decision properly
determined that complainant was not entitled to an award of compensatory
damages based on the agency's finding of disability discrimination, (2)
whether the agency erred in failing to tender payment of back pay, and
(3) whether the agency erred in failing to tender payment of attorney's
fees in the amount agreed to by the parties.
BACKGROUND
The record reveals that complainant, a Correctional Officer at the
agency's Terminal Island facility in Los Angeles, California from
1991-1995, filed a formal EEO complaint with the agency on April 15, 1995,
alleging that the agency had discriminated against him on the basis of his
physical disability (knee injury/right patella cartilage defect)<3> when
it failed to provide him with reasonable accommodation from 1992 through
1995, culminating in his disability retirement. After an investigation,
complainant requested a hearing by an EEOC Administrative Judge
(AJ). Following a hearing, the AJ issued a recommended decision (RD)
finding that the agency failed to provide complainant with reasonable
accommodation in violation of the Rehabilitation Act by (1) failing
to provide duties within complainant's medical restrictions, and (2)
failing to reassign complainant to a different position altogether. The
AJ found that this failure to accommodate spanned 1992 through 1995,
and aggravated complainant's physical condition.
By final agency decision (FAD) dated May 30, 1997, the agency rejected
the AJ's findings and conclusions regarding provision of duties within
complainant's medical restrictions, but adopted the AJ's findings and
conclusions regarding the failure to consider reassignment as a form
of accommodation. The FAD concluded that complainant could be and
was in fact accommodated within his position as a Correctional Officer
by receiving light duty assignments until July, 1995. Thus, the FAD
concluded that the failure to accommodate by considering reassignment
occurred only from July, 1995 onward, rejecting the AJ's finding that
discrimination occurred from 1992 through 1995. FAD at 10-13. The FAD
also specifically rejected the AJ's finding that the agency's failure to
accommodate complainant contributed to the worsening of his physical
condition. Id. at 13 n.3. The FAD ordered the following relief:
(1) reinstatement to a Correctional Officer position or other vacant
position, contingent upon the results of a fitness for duty examination;
(2) back pay from the date of complainant's disability retirement until
the date the agency determines the availability or unavailability of
reinstatement;<4> (3) posting of a notice consistent with Appendix A
of 29 C.F.R. �� 1613 and 1614.501; (4) reasonable attorney's fees and
costs, to be determined based upon complainant's counsel's submission of
appropriate documentation; (5) compensatory damages, if complainant could
establish that agency officials "failed to show good faith when they did
not consider him for reassignment to a new position," and could provide
supporting evidence of harm or injury "caused by the discrimination
resulting from the failure to consider reassignment."
Complainant did not appeal the agency's May 30, 1997 FAD. By letter
dated June 5, 1997, complainant, by counsel, declined the agency's
offer of reinstatement, and advised the agency that documentation
regarding interim earnings, in aid of calculating back pay, would soon
be transmitted to the agency.
On June 5, 1997, complainant filed petitions for $300,000 in compensatory
damages and $9,062.50 in attorney's fees. By intra-agency memorandum
dated September 9, 1997, and copied to complainant's counsel, the agency
confirmed that to date complainant had failed to submit any information
in support of his claim for back pay, and that complainant's compensatory
damages request and fee petition were under consideration.
On October 8, 1997, complainant received a check in the amount of $69.24,
without an accounting. Complainant responded by letter dated November
24, 1997, stating that he was entitled to back pay in the amount of
$18,490, and providing the manner in which he calculated the figure,
but with no documentation to verify the amount of interim earnings
asserted. By letter dated January 9, 1998, the agency responded that
the $69.24 payment was due to a payroll system adjustment unrelated to
complainant's back pay claim, and that the agency would "process all of
[complainant's] back pay" as soon as W-2 earnings forms, tax returns,
or notarized statement from subsequent employers verified complainant's
claimed amount of interim earnings in mitigation of his back pay.<5>
The record does not contain any reply by complainant, or submission of
the requested mitigation documentation.
By letter dated October 29, 1997, the agency offered to pay $7,812.50 in
attorney's fees, which complainant accepted by letter dated November
17, 1997. By intra-agency memorandum from the EEO Officer to the
facility Warden dated December 10, 1997, the Warden was directed to
initiate payment of attorney's fees in the agreed amount. The record
contains an intra-agency request form indicating that $7,812.50 payable to
complainant's counsel was approved by a cost center manager on December
31, 1997. The form states that the check is "required" on January 10,
1998. In his appeal filed March 23, 1998, complainant contends that
the agency had still not paid the agreed attorney's fees. The record
as forwarded on appeal contains no further evidence indicating whether
or not payment was made.
On appeal, complainant asserts that the agency erred in failing to
provide the following relief: (1) payment of back pay in the amount
of $18,490; (2) payment of $300,000 in compensatory damages; and (3)
payment of attorney's fees in the amount of $7,812.50, as agreed to by
the parties on November 17, 1997. In response, the agency contends:
(1) complainant has failed to submit documents necessary to process his
back pay claim, as outlined in the agency's letter of January 9, 1998;
(2) compensatory damages are not available because the agency made a good
faith effort to accommodate complainant's disability; and (3) payment
of fees in the agreed amount "was authorized" on December 31, 1997.
ANALYSIS
Back Pay
Complainant appeals the agency's alleged failure to act on his request
for back pay in the amount of $18,490. The FAD, which complainant did
not appeal, ordered back pay from the date of complainant's disability
retirement (October 16, 1995) until the date on which a decision was
made by the agency on complainant's eligibility for reinstatement.
Inasmuch as complainant advised the agency by letter dated June 5, 1997,
that he was not availing himself of possible reinstatement, that date is
appropriately treated as the date on which a decision was made regarding
the availability of reinstatement. Therefore, in accordance with the
FAD, complainant is entitled to back pay from October 16, 1995 until
June 5, 1997.<6>
The FAD did not direct complainant to submit any information in support of
his award of back pay. The record reveals that complainant advised the
agency on June 5, 1997 that information regarding complainant's interim
earnings was forthcoming, and subsequently provided that information to
the agency by letter dated November 24, 1997. In its reply letter dated
January 9, 1998, the agency requested underlying documentation verifying
complainant's asserted interim earnings. The record before us does not
indicate that this documentation was ever submitted.
We find that the agency reasonably seeks documentation relating to
mitigation of back pay in aid of calculating the amount due. However,
according to the agency's brief on appeal, this was not specifically
communicated to complainant's counsel until the agency's letter of
January 9, 1998. Nor is there any indication that the agency has ever
set a deadline for complainant's submission of this documentation.
Accordingly, we find that if back pay has not already been remitted by
the date this decision is issued, complainant must submit the underlying
documentation the agency has requested relating to mitigation within
thirty (30) days of the date of this decision becomes final, and the
agency must award the back pay determined to be due within thirty (30)
calendar days of receipt of complainant's submission, in accordance with
the Order issued herewith.
Compensatory Damages<7>
Complainant asserts that he was improperly denied a hearing on
compensatory damages because the AJ's RD stated that complainant could
request such a hearing, and complainant did so by letter to the AJ dated
March 31, 1997. We note, however, that the RD was not adopted in its
entirety by the May 30, 1997 FAD, which instead specifically provided for
determination of compensatory damages based upon complainant's written
submission to the agency of supporting documentation. Complainant was
provided with a notice of appeal rights at the time he received the FAD,
but did not appeal from the FAD. Accordingly, complainant's instant
request for the Commission to order a hearing on damages is untimely,
and will not be considered.
Pursuant to 42 U.S.C. � 1981(b)(3), the maximum total amount of
compensatory damages that may be awarded each complaining party for
future pecuniary losses, emotional pain, suffering, inconvenience, mental
anguish, loss of enjoyment of life, and other non-pecuniary losses, is
limited according to the number of individuals employed by the respondent.
The limit for a respondent who has more than 500 employees is $300,000.
See 42 U.S.C. � 1981a(b)(3)(D). Where a discriminatory practice involves
the provision of a reasonable accommodation, compensatory damages may
not be awarded where the employer demonstrates good faith efforts to
make a reasonable accommodation. See 42 U.S.C. � 1981a(a)(3).
The agency denied complainant's claim for compensatory damages in its
entirety, based on a finding that the agency made a good faith effort to
accommodate his disability. See Samuel v. United States Postal Service,
EEOC Appeal No. 01985021 (July 16, 1999). In so finding, the agency noted
that unlike the AJ's RD, the FAD found that agency officials complied
with complainant's medical restrictions. The FAD, which complainant did
not appeal, only found liability arising from the failure to consider
reassignment of complainant from July, 1995 onward. The FAD further found
that complainant was only entitled to compensatory damages if he could
"demonstrate that [agency] officials failed to show good faith when they
did not consider him for reassignment to a new position." FAD at 17,
�5; see 42 U.S.C. � 1981a(a)(3). The FAD additionally provided:
In addition to the lack of good faith evidence, complainant must provide
documentation and other supporting evidence which details the extent and
severity of harm and injuries caused by the discriminatory action in this
case, namely, the failure to consider reassignment. It is emphasized
that to be compensable, any harm or injury must have been caused by the
discrimination resulting from the failure to consider reassignment.
Id. Applying this standard, we find that the agency erred in finding
that management made good faith efforts to accommodate complainant's
disability. In expressly adopting the AJ's conclusion that the agency
failed to accommodate complainant's disability by failing to consider
reassigning him to a different position altogether, the FAD specifically
noted:
. . . what [the agency] does not satisfactorily address is why, if
complainant could not be reasonably accommodated in his Correctional
Officer position . . . reassignment to a less strenuous position was
not considered . . . The record indicates that this option was never
considered. No management official indicated exploring this option,
and yet . . . the agency has the obligation to consider and, where
appropriate, make the offer of reassignment . . .
. . . it is reasonable to conclude that [agency officials] would have
known [that complainant had skills other than those of Correctional
Officer] had they engaged in an 'interactive' process with respect to
reassignment . . . Yet, despite complainant's contacting [management
about a particular reassignment], no such exploration took place
. . . But importantly, [agency officials] never considered the matter
of reassignment, and by not doing so, failed to meet its obligation of
fully considering reasonable accommodation.
FAD at 14. Significantly, the FAD concluded that the agency's Human
Resources Manager gave untruthful testimony relating to reassignment,
finding as follows:
The agency, through [its Human Resources Manager], argues that
complainant never raised the matter of reassignment. This assertion
is contradicted by a July 11, 1994 memorandum from complainant to [the
Warden] in which complainant explicitly states that he explicitly asked
[the Human Resources Manager] whether he could be transferred to another
position . . . While it is possible that complainant was not telling the
truth in his memorandum, it is unlikely that he would put such a matter
in writing, and, at any rate, the memorandum was sufficient to conclude
that complainant raised the matter of reassignment with [the Warden].
FAD at 14. In addition, the FAD rejected the agency's assertion that
because institutional policy required all employees to be ready to perform
custody duties in emergencies, it would have been an undue burden to
accommodate complainant through reassignment to a position other than
Correctional Officer. The FAD specifically concurred with the AJ's
finding that the agency had failed to provide any evidence in support of
the contention that complainant's disability precluded him from responding
to emergencies. Significantly, the FAD noted the disingenuousness of
management's testimony on this point, observing that "[i]ndeed, if [the
agency] believed that complainant was unable to respond to an emergency
on account of his knee, it is surprising that complainant was retained
as a Correctional Officer during this three year period." FAD at 15.
Additionally, although by the terms of the FAD complainant cannot obtain
damages for the agency's alleged failure to assign him duties within
his medical restrictions, or for events occurring prior to July, 1995,
the evidence of record regarding the motives of the relevant managerial
officials toward complainant's requests for accommodation of any type, at
any time, may be probative of whether the failure to consider reassignment
from July, 1995 onward demonstrated the absence of a good faith effort
to accommodate complainant's disability. When interviewed by the EEO
Counselor on March 13, 1995, the Captain who served as complainant's
superior stated "he believes that [complainant] is malingering and must
stop it, or be faced with termination." See EEO Counselor's Report at
5 �b. The Captain "also stated that there is no post in his Department
(Correctional Services) that is a light duty position and that he is tired
of [complainant]." Id. According to the EEO Counselor, in an interview
on the same date, the Human Resources Manager "echoed the sentiment of
[the] Captain," and stated that "[i]n addition to possible termination
for [complainant], he should consider medical retirement." Id.
We also note complainant testified that when he approached the Human
Resources Manager to discuss performing other kinds of work as an
accommodation for his disability, she advised him to "stay in custody."
Hearing Transcript (Trans.) at 41. She also specifically told him
he could not be reassigned but would have to apply for any transfer
he sought. Record of Investigation (ROI) at Exhibit 29 (complainant's
memorandum dated July 11, 1994). She ultimately advised him that if he
could not perform the duties of his position as Correctional Officer,
he would have to be terminated, following which he applied for disability
retirement. Trans. at 175. At no time was complainant ever interviewed by
anyone in Personnel to ask about the kinds of work he could perform or how
he could be accommodated in any role other than that of a Correctional
Officer. Trans. at 41. When a union officer raised with management
the matter of longer-term accommodation of complainant's disability,
management personnel were dismissive. Trans. at 125-26; 132; 134.
Complainant also testified that when denying various accommodations he
sought, managers repeatedly told him that he should just be thankful that
he had a job. Trans. at 25; see, e.g., ROI at Exhibit 29 (complainant's
memorandum dated March 6, 1995). Moreover, by memorandum dated July 26,
1995, complainant memorialized a conversation in which a supervising
Lieutenant screamed at him that he was tired of accommodating him.
See ROI at Exhibit 29. In addition, after complainant exhausted his
available sick and annual leave, he asked the Warden to place his name
on the list of those requesting donated leave, but the Warden did not
do so, and instead placed complainant on the AWOL list. Trans. at 32-34.
The foregoing evidence is sufficient to establish that the agency did
not make a good faith effort to accommodate complainant when it failed to
consider reassignment from July, 1995 onward. Therefore, complainant is
eligible to obtain compensatory damages provided such damages are proven.
Cf. Bernard v. Department of Veterans Affairs, EEOC Appeal No. 01966861
(July 17, 1998).
Complainant is required to provide objective evidence that will allow an
agency to assess the merits of his request for emotional distress damages.
See Economou v. Department of the Army, EEOC Appeal No. 01983435 (August
5, 1999); EEOC Enforcement Guidance on Compensatory and Punitive Damages
Available Under Section 102 of the Civil Rights Act of 1991 at 11-12,
14 (July 14, 1992). Compensatory damage awards are limited to the sums
necessary to compensate a complainant for the actual harm suffered as a
result of the agency's discriminatory act. See Carter v. Duncan-Higgins,
Ltd., 727 F.2d 1225 (D.C. Cir. 1984). The agency is only responsible
for those damages that are clearly shown to be caused by the agency's
discriminatory conduct. Carle v. Department of the Navy supra; Fazekas
v. USPS, EEOC Appeal No. 01954627 (April 7, 1997); Rountree v. Department
of Agriculture, EEOC Request No. 05950919 (February 15, 1996).
We agree with the agency that complainant cannot recover for damages
arising prior to July, 1995, or for damages caused by the alleged
assignment of duties outside his medical restrictions, since he did
not appeal the FAD, which rejected that claim. Moreover, the medical
evidence of record regarding the amount of deterioration of complainant's
physical condition which occurred between July, 1995, and the time he
retired is too vague and disputed for complainant to obtain compensatory
damages for the agency's alleged causation of his physical condition or
its deterioration from July, 1995 onward.<8>
However, the record does establish that, more likely than not, complainant
was required to take disability retirement due to the agency's failure
to consider reassignment. Specifically, complainant's application for
disability retirement is supported by a physician's letter dated October
26, 1995, which specifically states that complainant is an appropriate
candidate for disability retirement because "he is unable to return to his
previous work as a prison guard." See ROI at Exhibit 29. Accordingly,
to the extent complainant has established that the non-pecuniary damages
he seeks were caused by the agency's failure to consider reassignment,
including the fact that he was required to take disability retirement
rather than be reassigned, these damages are compensable. Inasmuch as
complainant has not sought recovery of any pecuniary damages, we address
non-pecuniary damages only.
Complainant testified at the AJ hearing that he was seeking compensatory
damages due to "the aggravation of my mental condition and my medical
condition," and described, inter alia, the agency's failure to consider
his requests for reassignment or to pursue reassignment possibilities.
Trans. at 37-41. The record contains a clinical psychologist's
evaluation dated November 26, 1996, reflecting complainant's diagnosis
of Post-Traumatic Stress Disorder (PTSD). However, the evaluation
does not provide an opinion by the psychologist regarding the cause
of complainant's PTSD, and complainant does not appear to contend that
the agency's actions caused his PTSD in the first instance. However,
the evaluation does verify complainant's contemporaneous report to a
psychologist that his medical retirement was one of the causes to which
he attributes the aggravation of his symptoms. Under the heading
"chief complaint and history of present illness," the evaluation states:
[complainant] complains of being overly anxious. He injured his knee
in the summer of 1992 . . . He has had four surgeries. His physical
condition has caused problems at work. He is on medical retirement.
He is now under stress due to an EEO case against the Justice Department
due to harassment. It should be noted that he served on active duty in
the Persian Gulf War prior to the knee injury incident.
According to the evaluation, complainant's symptoms of emotional distress
at that time included fatigue, appetite disturbance, sleep disturbance
(insomnia/early morning awakening), impaired concentration and memory,
and severe distress (indicated by apprehension/hand-wringing). The
psychologist recommended cognitive therapy to improve coping skills
and reduce symptoms relating to the following: obsessive worry
and negative thinking which interfere with daily functioning;
depression which interferes with work, school, or daily living;
incapacitating stress resulting from physical or psychological trauma.<9>
Complainant testified at the AJ hearing that the psychologist's report
accurately described his condition, and that he was "continuing to
see him." Trans. at 36. However, the record does not specify how long
thereafter complainant pursued the recommended therapy, or what the
prognosis was at any subsequent time.
The Commission notes that evidence from a health care provider is not a
mandatory prerequisite for recovery of compensatory damages for emotional
distress. Economou v. Department of the Army, EEOC Appeal No. 01983435
(August 5, 1999); Bernard v. Department of Veterans Affairs, EEOC Appeal
No. 01966861 (July 17, 1998). Complainant's own testimony, along with the
circumstances of a particular case, can suffice to sustain his burden,
but the absence of supporting evidence may affect the amount of damages
deemed appropriate in a particular case. Id. Moreover, an award of
compensatory damages for non-pecuniary losses, including emotional harm,
should reflect the extent to which the agency's discriminatory action
directly or proximately caused the harm and the extent to which other
factors also caused the harm. See Johnson v. Department of Interior,
EEOC Appeal No. 01961812 (June 18, 1998).
Based on the objective evidence reviewed above, we find that complainant
has suffered from emotional distress which was caused at least in part by
the agency's failure to consider reassignment and complainant's resulting
medical retirement. Accordingly, the Commission finds that he should be
awarded $25,000 in non-pecuniary compensatory damages, which takes into
account the other identified causes which contributed to complainant's
damages and reflects an appropriate adjustment in the award. See,
e.g., Terrell v. Dept. Of Housing and Urban Development, EEOC Appeal
No. 01961030 (October 25, 1996) ($25,000 award for emotional harm where
discriminatory activity exacerbated, for at least two years, problems
unrelated to discrimination), request to reconsider denied, EEOC Request
No. 05970336 (November 20, 1997); Smith v. Dept. of Defense, EEOC Appeal
No. 01943844 (May 9, 1996) ($25,000 award for emotional harm, where many
aggravating factors not related to discrimination also were present).
Attorney's Fees
On November 17, 1997, complainant accepted the agency's offer to pay
$7,812.50 in attorney's fees. As of the filing of the instant appeal
on March 23, 1998, payment still had not been made by the agency.
In its brief on appeal, dated April 15, 1998, the agency contends that
"[o]n December 31, 1997, payment for [complainant's] attorney's fees was
authorized to be sent" to complainant's counsel. Thus, in response to
complainant's contention, the agency does not state that payment was in
fact sent, nor does it provide any evidence thereof. If payment still has
not been made by the date of this decision, the agency is hereby directed
to make payment to complainant within thirty (30) days of the date this
decision becomes final, with interest dating back to January 10, 1998,
the date on which the agency's cost center personnel indicated payment
was to be made.
Complainant also seeks $750 in attorney's fees for the instant
appeal, based on three additional hours at an hourly rate of $250.
The Commission finds that the requested appellate fees are reasonable.
Blum v. Stenson, 465 U.S. 886 (1984); Hensley v. Eckerhart, 461 U.S. 424
(1983). We therefore award the amount requested, to be paid in accordance
with the following Order.
CONCLUSION
Therefore, after a careful review of the record, including complainants
arguments on appeal, the agency's response, and arguments and evidence not
discussed in this decision, the Commission REVERSES the agency's April
1, 1998 final decision regarding compensatory damages, and REMANDS the
matter to the agency to take remedial actions in accordance with this
decision and the ORDER below.
ORDER (D1092)
The agency is ORDERED to take the following remedial action:
1. If the agency has not remitted complainant's back pay by the
date this decision is issued, then within thirty (30) calendar days
of the date this decision becomes final, complainant must submit to
the agency the underlying documentation it has requested regarding his
interim earnings in mitigation of his back pay claim. Upon receipt of
complainant's submission of the relevant documentation, the agency shall
determine the appropriate amount of back pay, with interest, and other
benefits due complainant, pursuant to 64 Fed. Reg 37,644, 37,659-60
(1999) (to be codified and hereinafter referred to as 29 C.F.R. �
1614.501), and will remit payment to complainant no later than thirty
(30) calendar days after receipt of complainant's submission. If there
is a dispute regarding the exact amount of back pay and/or benefits,
the agency shall issue a check to the complainant for the undisputed
amount within the time frame allotted. The complainant may petition for
enforcement or clarification of the amount in dispute. The petition for
clarification or enforcement must be filed with the Compliance Officer,
at the address referenced in the statement entitled "Implementation of
the Commission's Decision."
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall remit payment to complainant of compensatory damages
in the amount of $25,000.
3. If the agency has not remitted complainant's back pay by the date
this decision is issued, then within thirty (30) calendar days of the date
this decision becomes final, the agency must remit payment to complainant
of attorney's fees in the amount of $7,812.50, as agreed by the parties,
with interest running from January 10, 1998 until the date of payment,
as well as an additional $750 in appellate fees.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's calculation of back pay and other benefits due complainant,
and verification that payment of back pay, compensatory damages, and
attorney's fees due have been remitted to complainant.
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 (M0300)
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); 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 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:
3/30/00
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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.
2The April 1, 1998, decision stated that complainant could seek
reconsideration within thirty days based on any additional available
evidence, whereupon a final agency decision would be issued. However,
the file contains no further submission or decision relating to damages,
and no subsequent decision.
3In 1992, complainant injured his knee in an accident while on a two-week
active duty assignment in the Marine Corps Reserve. After surgery
in February, 1993, he suffered continuing residual problems which
resulted in subsequent surgeries, and culminated in his disability
retirement due to his knee condition in late 1995 at the age of 31.
During the relevant time, complainant's knee impairment caused him to
be under a series of medical restrictions which, at different times,
limited variously climbing, bending, and like activities, as well as
prolonged standing, walking, kneeling, or running.
4The FAD stated the following rationale for awarding complainant back
pay for the referenced period of time: "While there is a good argument
that complainant could not have continued employment after his physical
condition deteriorated to the point that he became eligible for disability
retirement in 1995, the record does not conclusively show that complainant
could not have continued working had he been provided reasonable
accommodation in the form of appropriate reassignment. Given this,
back pay is appropriate up to the time [the agency] determines that
reinstatement is or is not possible." FAD at 16.
5There is no indication in the record that the agency previously advised
complainant directly that this underlying documentation relating to
mitigation was required.
6The record reveals that complainant's application for disability
retirement was granted in December, 1995, retroactive to the date of his
application, which was October 16, 1995. See Record of Investigation
(ROI) at Exhibit 31.
7Complainant's request for compensatory damages was based exclusively
on non-pecuniary damages.
8In addition, we note that the record reveals complainant only actually
worked for approximately two weeks after returning from his July,
1995, surgery before going on leave and subsequently being approved for
disability retirement. Trans. at 70-71.
9With respect to the psychologist's statement that complainant attributed
his stress in part to his EEO complaint, the Commission has held that a
complainant may not recover compensatory damages for stress associated
with prosecution of an EEO complaint. Rountree v. Department of
Agriculture, EEOC Appeal No. 01941906 (July 7, 1995), aff'd, EEOC Request
No. 05950919 (February 15, 1996). An award of damages must be adjusted to
reflect the extent to which the injury was caused by the agency's action
as opposed to the harm experienced in pursuit of EEO complaints. Olsen
v. Department of Defense, EEOC Appeal No. 01956675 (July 29, 1998).