Lorina D. Goodwin, Complainant,v.F. Whitten Peters, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionOct 18, 2000
01991301_01a01796 (E.E.O.C. Oct. 18, 2000)

01991301_01a01796

10-18-2000

Lorina D. Goodwin, Complainant, v. F. Whitten Peters, Secretary, Department of the Air Force, Agency.


Lorina D. Goodwin, ) Appeal Nos. 01991301

Complainant, ) 01A01796

) Agency Nos. SAC-97-AF-0259-E

v. ) SAC-97-AF-0260-E

) SAC-97-AF-0261-E

F. Whitten Peters, ) Hearing Nos. 380-98-8027X

Secretary, ) 380-98-8028X

Department of the Air Force, ) 380-98-8029X

Agency. )

)

DECISION

INTRODUCTION

Pursuant to 29 C.F.R.� 1614.405, the Commission accepts the complainant's

appeal from the agency's final decision in the above-entitled matter.<1>

Complainant filed three complaints in which she identified thirteen

separate incidents. She claimed that she was sexually harassed with

respect to ten incidents and subjected to reprisal with respect to

the remaining three. The agency consolidated the three complaints,

conducted an investigation, and referred the matter to an Administrative

Judge (AJ). The AJ recommended a finding of discrimination only with

respect to five out of seven incidents in the first complaint. The agency

subsequently adopted the AJ's recommendation as its final decision, with

some modifications as to the relief to be awarded. Complainant appealed

the agency's finding of no discrimination with respect to three of the

thirteen incidents. The Commission docketed this appeal as no. 01991301.

While this appeal was pending, the agency issued final decisions with

respect to compensatory damages and attorneys fees to be awarded.

Complainant appealed these decisions as well. The Commission docketed

this second appeal as no. 01A01796. These two appeals are consolidated

herein for decision.

ISSUES PRESENTED

Liability

Whether complainant's supervisor subjected her to sexual harassment in

1991 or 1992, when he allegedly showed her an x-ray of his pelvic area.

Whether complainant was subjected to sexual harassment in January 1995,

when a male co-worker allegedly suggested to her that she could resolve

her conflicts with her supervisor by using the excuse that she was going

through menopause.

Whether complainant was subjected to reprisal for having filed the first

two complaints when, in October 1995, her commander issued her a notice

of proposed reprimand.

Remedies

Whether the agency correctly calculated the amount of compensatory

damages to be awarded.

Whether the agency's award of attorneys fees was appropriate.

BACKGROUND

The agency employed complainant as an administrative manager at McChord

Air Force Base, Washington. She filed three EEO complaints in which she

claimed that the agency subjected her to ongoing sexual harassment and

reprisal. Together, the three complaints set forth multiple incidents of

harassment that began in 1991 or 1992 and continued until October 1995.

The agency investigated the complaint and thereafter referred them

to an administrative judge (AJ), who issued a recommended decision

finding discrimination only with respect to five incidents identified

in the first complaint. Pursuant to his finding of liability, the AJ

recommended that the agency award complainant appropriate equitable

remedies, attorney's fees, and compensatory damages. The agency

subsequently issued separate final decisions on the issues of liability

and remedies. The agency adopted the AJ's recommendation on the issue of

liability, and awarded $13,842.75 in attorneys fees and costs, as well

as $5,000 in compensatory damages. On appeal, complainant contests the

AJ's findings of no liability with respect to the above-referenced issues.

She also contests the size of her attorneys fees and damages awards.

ANALYSIS AND FINDINGS

Liability

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings

by an administrative judge will be upheld if supported by substantial

evidence in the record. Substantial evidence is defined as �such relevant

evidence as a reasonable mind might accept as adequate to support

a conclusion.� Universal Camera Corp. v. National Labor Relations

Board, 340 U.S. 474, 477 (1951). A finding regarding whether or not

discriminatory intent existed is a factual finding. See Pullman-Standard

Co. v. Swint, 456 U.S. 273, 293 (1982).

Sexual Harassment

Complainant may establish a violation of Title VII by demonstrating that

she was subjected to sexual harassment that was severe or pervasive

enough to create a hostile work environment. Meritor Savings Bank

F.S.B. v. Vinson, 477 U.S. 57, 62-67 (1986). To establish the existence

of sexual harassment based on a hostile work environment, appellant

would have to show: that she belongs to a protected gender group; that

she was subjected to unwelcome conduct of a sexual nature based on her

sex; that the harassment created an intimidating, hostile or offensive

work environment; and that there is a basis for imputing liability to

the agency. Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).

If the complainant satisfies these elements, then the agency is subject

to vicarious liability insofar as the harassment would have been �created

by a supervisor with immediate ... authority over the [complainant].�

Enforcement Guidance: Vicarious Liability for Unlawful Harassment by

Supervisors, EEOC Notice No. 915.002 (June 18, 1999), at 4 (citing

Burlington Industries, Inc., v. Ellerth, 524 U.S. 742, 763-64 (1998),

and Faragher v. City of Boca Raton, 524 U.S. 775, 805-07 (1998)).

The conduct in question must be "so objectively offensive as to alter

the 'conditions' of the victim's employment" as evaluated "from the

perspective of a reasonable person" in the complainant's position, taking

into account "the social context in which particular behavior occurs and

is experienced by its target." Oncale v. Sundowner Offshore Services,

Inc., 523 U.S. 75, 81 (1998); Harris v. Forklift Systems, Inc., 510

U.S. 17, 21-22 (1993); Meritor, 477 U.S. at 67. When the harassment

does not result in a tangible employment action, such as a discharge,

demotion, or nonselection, the agency can raise an affirmative defense to

liability which it can meet by demonstrating that it exercised reasonable

care to prevent and correct promptly any harassing behavior, and that

the employee unreasonably failed to take advantage of any preventive

or corrective opportunities provided by the agency or to avoid harm

otherwise. Enforcement Guidance: Vicarious Liability for Unlawful

Harassment by Supervisors, at 7, 12.

The X-Ray Incident

The evidence of record establishes that, in 1991 or 1992, the supervisor

showed complainant an x-ray of the pelvic area of a human male.

It was unclear from the testimony of the various witnesses whether

the x-ray was of the supervisor or a male co-worker of complainant's.

What is clear though, is that male genitalia were depicted in the x-ray.

The AJ found this act to constitute unwelcome sex-based conduct, and

we agree. But the AJ also found that complainant did not react to the

situation as though it were offensive. According to the AJ, complainant

calmly told the supervisor that he should be careful to whom he showed

the x-ray. He found no evidence that complainant had been intimidated

by the supervisor in 1991 or 1992. The AJ also found that complainant

could not remember the year in which the incident occurred. For these

reasons, the AJ concluded that the x-ray incident, by itself, was not

so severe or pervasive that it altered complainant's work environment,

or was otherwise related to the incidents upon which complainant

eventually prevailed in her sexual harassment claim. The AJ also found

that complainant never talked to anyone about the incident until she

filed her first EEO complaint, nearly four years later. Consequently,

the agency was never put on notice that remedial action was required.

In her appeal, complainant contends, in general terms, that the x-ray

incident reflected that a hostile environment existed at the facility

since 1991. Her reaction at that time does not reflect that assessment,

and complainant has not presented any evidence that contradicts or

undermines the AJ's factual findings. We therefore affirm the agency's

finding of no discrimination with respect to the x-ray incident.

The Menopause Remark

On January 11, 1995, complainant and her male colleague were taking

a smoking break together, which they often did. Complainant confided

in the male co-worker that she was having a very difficult time with

the supervisor. The male co-worker admitted that he said, in a joking

manner, that complainant could resolve her conflict with the supervisor

by using the excuse that she was going through menopause. The AJ found

that the co-worker offered the menopause idea as a means of dealing

with her supervisor and not as an insult. The co-worker apologized

after complainant told him that she was offended by the remark, and the

two of them continued to take smoke breaks together after the incident.

On appeal, complainant attempts to characterize this incident as part

of the ongoing sexual harassment campaign being orchestrated by her

supervisor. The preponderance of the evidence does not, however,

establish that the co-worker was in league with, or acting at the

direction or behest of the supervisor. As with the x-ray incident,

we agree with the agency that the menopause remark was not part of the

chain of incidents that were found to constitute sexual harassment with

respect to the first complaint.

Reprisal

To prevail on her reprisal claim, complainant must satisfy the three-part

evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973). She must initially establish a

prima facie of reprisal by showing: (1) that she engaged in protected

EEO activity; (2) that the agency was aware of that activity; and (3)

that she was subjected to an adverse action at such a time or in such

a manner as to support a causal connection between the two events.

Frye v. Department of Labor, EEOC Request No. 05940764 (December 15,

1994). The burden then shifts to the agency to articulate a legitimate,

nondiscriminatory reason for its actions. Texas Department of Community

Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail,

complainant must prove, by a preponderance of the evidence, that the

agency's explanation is pretextual. St. Mary's Honor Center v. Hicks,

509 U.S. 502, 519 (1993).

The Notice of Proposed Reprimand

We agree with the AJ that complainant has established a prima facie case

of reprisal with respect to the notice of proposed reprimand issued in

October 1995. By this time, complainant had filed the first two EEO

complaints. The commander who issued the notice admitted that he was

aware of those complaints. The commander had the notice issued while the

two complaints were pending, which is close enough in time to establish

the necessary causal link between the two. While our regulations require

agencies to dismiss claims involving proposed actions, 29 C.F.R. �

1614.107(a)(5), proposed actions can be considered adverse actions in

the reprisal context if they are reasonably likely to deter protected

activity. See EEOC Compliance Manual Section 8, �Retaliation;� No. 915.003

(May 20, 1998), p. 8-15. The proposed notice put the complainant on the

defensive, to the point where she suffered an anxiety attack after being

called into the commander's office and informed of the proposal. The AJ

correctly found that a proposed reprimand could easily be perceived as

an interference with the EEO process, given the two pending complaints.

This is more than sufficient to establish a prima facie case of reprisal.

The commander testified that he issued the notice of proposed reprimand

in response to reports that he had received that complainant had been

accusing certain civilian personnel of theft in the presence of commercial

contractors, and had been publicly asserting that a master sergeant

had been given promotional opportunities in exchange for sexual favors.

The Commander testified that his purpose in issuing the notice of proposed

reprimand to complainant was to stop her from making malicious statements

that interfered with the operations of the base. This reason is legitimate

and nondiscriminatory, and is therefore sufficient to rebut the inference

of reprisal raised by the prima facie case.

After reviewing the record in its entirety, we find, as did the AJ,

that complainant did not prove that the commander's reason for issuing

the notice of proposed reprimand was a pretext for reprisal. The AJ

found the commander to be a convincing and credible witness. In her

appeal, complainant attempts to establish pretext by arguing that the

commander relied solely on information provided by the supervisor, and

that the supervisor had a motive for lying. This too is unsupported by

the record. According to the AJ, three witnesses testified that they

heard complainant make racist and sexist slurs about the sergeant.

Complainant's appeal does not address these findings. Instead, she

simply reiterates her argument regarding her supervisor. On balance,

the AJ's findings are consistent with the evidence. Accordingly,

we find no basis for disturbing those findings. We now turn to the

remedial issues raised in this case.

Remedies

In its final decision, the agency indicated that it would award the

following remedies:

Equitable Relief:

Reimbursement for leave taken as a result of the supervisor's actions;

Corrective and preventative measures, including disciplinary action,

reassignment of the offending individuals, or training;

Written commitment to cease and desist from engaging in future acts of

discrimination and reprisal;

Compensatory Damages

Attorneys Fees

At the conclusion of this decision, we will enter an order directing

the agency to award complainant the equitable relief that it promised in

its final decision, or alternatively, to show that it had already done

so. Only the issues of damages and attorneys fees remain unresolved.

We will address the matter of damages first.

Compensatory Damages

Section 102(a) of the Civil Rights Act of 1991 authorizes the Commission

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

discrimination. 42 U.S.C. � 1981a; West v. Gibson, 527 U.S. 212,

199 S.Ct. 1906, 1909 (1999). To receive an award of compensatory

damages, complainant must demonstrate that she has been harmed as a

result of the agency's discriminatory action, as well as the extent,

nature, severity, and duration of that harm. Compensatory and Punitive

Damages Available Under Section 102 of the Civil Rights Act of 1991,

EEOC Notice No. N 915.002 (July 14, 1992), at pp.8, 11-12, 14. She must

support her claim with objective evidence, which may include her own

statements, statements from family members and friends, or statements

and documents from health care providers which identify and describe

physical or behavioral manifestations of mental or emotional distress.

See generally Carle v. Department of the Navy, EEOC Appeal No. 01922369

(January 5, 1993). 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, and the less it

is necessary to rely on evidence from a health care provider to justify

a damages award. See Lawrence v. United States Postal Service, EEOC

Appeal No. 01952288 (April 18, 1996). Nevertheless, the absence of

such supporting evidence could potentially affect the amount of damages

that could be awarded in specific cases. Id.

Evidence of Injury and Causation

Complainant's evidence on the question of injury and causation consists

of testimony from a clinical social worker that she began seeing in

August 1995. The social worker testified that complainant had been

suffering from an acute stress disorder, which began to manifest in

June 1995. Hearing Transcript (HT) 57. When asked how severe this

condition was, the social worker responded that it was about a 7 or 8 on

a scale of 1-10. HT 63. When asked to give an opinion as to the cause

of complainant's acute stress disorder, he said, without equivocation,

that it was the actions of her supervisor. HT 61. He testified that

he observed such symptoms as nervous tics, shaking, and other symptoms

of panic. HT 57-58. We find, as did the AJ, that the social worker's

testimony is sufficient to establish that complainant's acute stress

disorder resulted from her supervisor's acts of discrimination.

Calculation of Pecuniary Damages

Complainant may be awarded damages for pecuniary losses which are

directly or proximately caused by the agency's discriminatory conduct.

Compensatory and Punitive Damages Available Under Section 102 of the Civil

Rights Act of 1991, supra, at p. 8. In her appeal brief, complainant

claims entitlement to $228 in unpaid medical bills and reimbursement for

$600 worth of St. John's Wort. She has not, however, presented any bills,

receipts, or other evidence substantiating her claim, despite having

the opportunity to do so before the agency issued its final decision on

damages as well as on appeal to the Commission. We therefore find that

the agency correctly disallowed her claim for $828 in pecuniary damages.

Calculation of Non-Pecuniary Damages

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

nonpecuniary losses, except that the award should reflect the nature

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

harm, and should be consistent with awards in similar cases. 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). The AJ in this case recommended an award of $5,000 in

nonpecuniary compensatory damages, which the agency agreed to in its

final decision on damages. On appeal, complainant demands $100,000 in

nonpecuniary damages.

When asked what impact her supervisor's acts of sexual harassment had

upon her, complainant responded that she still suffered from anxiety

attacks. She testified that, as of the May 1998 hearing, she was being

seen once every three weeks to once a month by the social worker and

by a psychiatrist at a mental health services center. She stated that

she was still taking anti-anxiety medication, including an alternative

herbal remedy known as �St. John's Wort.� HT 197-201. Complainant also

submits unsworn statements from her sister and husband, dated December

17, 1998. Complainant's sister indicated that between June and August

1995, she observed complainant's emotional health deteriorate further,

but did not say whether this was the case after August 1995. Her husband

wrote that during 1995, complainant would sit on their sun deck for hours,

staring off into space, and that since then, he remained concerned about

the possibility that complainant would suffer another anxiety attack.

The social worker testified that, pursuant to his submission of a

work-release form, the agency transferred complainant to another office in

early September 1995. HT 62, 67. When asked if he noticed any changes

in complainant's condition after she moved to her new work environment,

the therapist testified that, yes, he did observe an immediate sense of

relief, that she no longer felt intimidated, that she felt safe, and did

not have to be on her guard. HT 62. He also stated that the people in

her new work assignment were quite pleased with having her. HT 62-63.

On appeal, complainant indicates that she continued to take St. John's

Wort, upon the advice of her psychiatrist. She has not presented any

notes or statements from the psychiatrist indicating that she needs to

remain on medication indefinitely. In addition, she has not submitted

any receipts or bills substantiating her claim that she was still seeing

the social worker and the psychiatrist, or would have to continue to do

so in the future.

In Benson v. Department of Agriculture, EEOC Appeal No. 01952854 (June

27, 1996), the Commission affirmed the agency's award of $5,000.00

in nonpecuniary damages where the complainant, his relatives, and

his colleagues offered testimony regarding the embarrassment and

humiliation that the employee suffered at work as a result of the denial

of promotional opportunities, a suspension, and other adverse actions.

In Palmer v. Department of the Navy, EEOC Appeal No. 01956059 (September

2, 1998), the Commission found the AJ's award of $5,000 to be reasonable

based on the employee's testimony that she had been subjected to a hostile

work environment and suffered moderately severe psychological stress

as a result. In addition to her own testimony, the employee submitted

reports from a psychologist. Finally, in Androvich v. Department of

Agriculture, EEOC Appeal No. 01950531 (July 12, 1996), the Commission

awarded $5,000 to the aggrieved employee on the basis of testimony from

herself, her sister, and her ex-spouse, as well as statements from

four clinical psychologists, that she suffered from anxiety attacks,

depression, and insomnia, as a result of the agency's aggravation of a

pre-existing mental condition caused by its discriminatory conduct.

On the whole, the evidence in the case before us indicates that

complainant suffered acute anxiety attacks between June and August, 1995,

that she was treated for those attacks, and that she continues to take

St. John's Wort as a preventative. Although complainant established

that she was still susceptible to anxiety attacks after August 1995, she

has not presented any evidence that she actually did suffer such attacks

during that time frame. Thus, we agree with the AJ and the agency that

the temporary duration of complainant's acute stress disorder justifies

the limitation of the award for nonpecuniary compensatory damages to

$5,000 for moderately severe pain and suffering. See Brinkley v. United

States Postal Service, EEOC Appeal No. 01953977 (January 23, 1998); Finlay

v. United States Postal Service, EEOC Appeal No. 01942985 (April 29, 1997)

(burden of limiting award rests with agency).

Attorneys Fees and Costs

Fees

Title VII authorizes the award of reasonable attorney's fees to

a prevailing complainant, absent special circumstances. 29 C.F.R. �

1614.501(e); Newman v. Piggie Park Enterprises, 390 U.S. 400 (1975); Troie

v. United States Postal Service, EEOC Request No. 05930866 (September

22, 1994). A complainant will be deemed to "prevail" for purposes of

obtaining attorney's fees if she succeeds on any significant issue in

litigation and achieves some of the benefit she sought in bringing the

action. Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st. Cir. 1978).

Here, there is no question that complainant is a prevailing party.

She had retained two attorneys to prosecute her complaints. She paid

the first attorney $6470.49 and the second attorney $14,521.49.

Regarding the fee request pertaining to the second attorney, the agency

disallowed $3,204.90 for legal research, transcript synopsis, and other

work done after the hearing but before issuance of the final decision.

The agency's reason for disallowing these expenditures was that, at the

time, no appeal was pending. We agree that the agency acted properly,

not because complainant had not yet filed an appeal, but rather because

the instant appeal will not result in complainant obtaining greater

relief than that authorized by the agency in its final decision.

As to the remainder of the fee request, the AJ recommended that the

agency award only one third of the total fees claimed, on the ground that

complainant prevailed in only one of the three complaints that she filed.

Acting upon the AJ's recommendation, the agency reduced the total amount

of compensable time billed, in an across-the board fashion, which it is

authorized to do in appropriate circumstances. McGinnis v. Department

of Defense - Defense Logistics Agency, EEOC Request No. 05920150

(July 15, 1992). Its final award, $4,852.87 for the first attorney's

fees and $8,487.38 for the second attorney's fees, went beyond the AJ's

recommendation, reducing the total award by only one third of the claimed

amount, rather than by two thirds.

In her appeal, complainant argues, in general terms, that she was a

prevailing party. Her appeal does not, however, address the agency's

reasons for its across-the-board reduction of the total fee award, nor

its reasons for disallowing expenses for work done after the hearing.

We therefore affirm the agency's decision regarding complainant's

attorneys fee request.

Costs

Complainant submitted documentation with respect to only two items.

She presented an invoice in the amount of $502.50, for the social

worker's witness fee. The agency agreed to reimburse complainant for

this expense. The second item was a long-distance charge in the amount

of $5.12. The charge was incurred by another of complainant's witnesses

at the hearing. The documentation consists of nothing more than a hotel

bill with a circled entry pertaining to the claimed phone charge, with no

explanation as to the circumstances under which the charge was incurred.

We find that the agency properly disallowed this item.

Summary

The agency's liability as to compensatory damages and attorneys fees is

as follows:

Compensatory Damages: $5,000.00

Attorneys Fees: $13,340.25

Costs - Witness Fee $502.50

Total $18,842.75

In her appeal, complainant stated that she recently received a check

in the amount of $18,000 from the agency as part of its final decision.

She indicated that this amount was meant to compensate her for both her

out of pocket expenses and attorneys fees, as well as her compensatory

damages. Appeal Brief, p. 9, footnote 4. Accordingly, we find that

the agency still owes complainant $842.75, and will direct the agency

to pay complainant this amount.

CONCLUSION

After a review of the record in its entirety, including consideration

of all statements submitted on appeal, it is the decision of the Equal

Employment Opportunity Commission to AFFIRM the final agency decision

and to direct the agency to award complainant relief as specified in

our order below.

ORDER (D1199)

Unless it has already done so, the agency shall take the following

remedial action:

Reimburse complainant for any annual and sick leave that complainant

had to take as a result of the five incidents comprising the claim upon

which she prevailed.

Provide 16 hours of training to the supervisor identified by complainant

as being responsible for the acts of sexual harassment that comprised

her claim. This training shall cover the rights and responsibilities

of employers and employees under the Title VII of the Civil Rights Act

of 1964, particularly with regard to the prevention of sexual harassment

in the workplace. If this individual is no longer employed, the agency

shall provide documentation of his departure to the Compliance Officer.

Issue a check to complainant in the amount of $842.75, which represents

the difference between the agency's total liability for compensatory

damages and attorneys fees, and the amount that the agency already paid

complainant.

The complainant may petition for enforcement or clarification of this

order. 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."

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 backpay and other benefits due complainant,

including evidence that the corrective action has been implemented.

POSTING ORDER (G1092)

The agency is ORDERED to post at McChord Air Force Base copies of

the attached notice. Copies of the notice, after being signed by the

agency's duly authorized representative, shall be posted by the agency

within thirty (30) calendar days of the date this decision becomes final,

and shall remain posted for sixty (60) consecutive days, in conspicuous

places, including all places where notices to employees are customarily

posted. The agency shall take reasonable steps to ensure that said

notices are not altered, defaced, or covered by any other material.

The original signed notice is to be submitted to the Compliance Officer

at the address cited in the paragraph entitled "Implementation of the

Commission's Decision," within ten (10) calendar days of the expiration

of the posting period.

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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION

(R0400)

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:

10-18-00

Date Carlton M. Hadden, 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.