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.