Lourdes Santiago, Appellant,v.Louis Caldera, Agency No. 91-10-0020 Secretary, 340-93-3259X Department of the Army, Agency.

Equal Employment Opportunity CommissionOct 15, 1998
01955684 (E.E.O.C. Oct. 15, 1998)

01955684

10-15-1998

Lourdes Santiago, Appellant, v. Louis Caldera, Agency No. 91-10-0020 Secretary, 340-93-3259X Department of the Army, Agency.


Lourdes Santiago, )

Appellant, )

)

v. )

) Appeal No. 01955684

Louis Caldera, )

Agency No. 91-10-0020

Secretary, ) Hearing No.

340-93-3259X

Department of the Army, )

Agency. )

)

DECISION

On July 25, 1995 appellant filed an appeal with this Commission from

a final decision of the agency dated June 29, 1995 concerning her

complaint of unlawful employment discrimination in violation of Title

VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et

seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as

amended, 29 U.S.C. �621 et seq. The appeal is accepted in accordance

with 29 C.F.R. �1614.401.

ISSUES PRESENTED

Whether the agency awarded appellant the appropriate amount of

compensatory damages following its finding of discrimination, and whether

it otherwise fully remedied appellant.

BACKGROUND

Appellant was employed with the agency's U.S. Corps of Engineers,

Los Angeles District, as a program analyst, GS-7. Following a hearing

before an Equal Employment Opportunity Commission (EEOC) Administrative

Judge (AJ), the AJ found that because appellant was an elderly woman,

appellant's supervisor, from almost the start of his tenure in October

1989, publicly humiliated and berated appellant, called her derogatory

and highly offensive names, and questioned her competence on a virtually

daily basis, often in front of other employees. For example, the

supervisor would stand over appellant while she worked, yell, and bombard

her with sarcastic and crushing remarks. He frequently found fault

in appellant's work and talked down to her in a rude and harsh tone.

Further, when appellant asked for assistance, the supervisor would

respond with "some debilitating remark" or just scream. His demeanor

with appellant was described as intimidating and almost vengeful.

The AJ found that this harassment continued until appellant was removed

in February 1993.

The AJ found that the agency's refusal to grant appellant's requests for

transfers away from her supervisor constituted reprisal discrimination.

Further, the AJ found that the supervisor discriminatorily refused to

grant appellant leave requests and refused to allow her to go home when

she was ill.

The AJ found that appellant was discriminated against when she was not

provided an appraisal in 1990 and 1991, was placed on GS-9 performance

standards and an unacceptably demanding individual development plan

(IDP), and was given a Notice of Unacceptable Performance on December 12,

1991 which placed her on a Performance Improvement Plan. The AJ found

that the supervisor repeatedly counseled appellant insisting that she

complete reports, re-do reports, get information immediately, respond in

writing and so forth in a transparent discriminatory attempt to ensure

appellant's failure in her position. The AJ held that appellant was

discriminated against on the bases of her sex, age, and EEO activity.

The AJ did not find discrimination on the bases of race or national

origin. The AJ found no discrimination with regard to appellant not

receiving a promotion to GS-9.

At the time of the hearing, appellant had an appeal pending before the

Merit Systems Protection Board (MSPB) regarding her performance based

removal of February 1993. The AJ found that since her removal was not

an issue before the EEOC, her entitlement to damages after the removal

was within the jurisdiction of the MSPB.

The AJ held a separate hearing to take evidence on appellant's claim that

she sustained compensatory damages as a result of the discrimination.

After noting that there was a $300,000 cap on future pecuniary losses

and nonpecuniary losses, and that damages are available only for

discriminatory occurrences on or after November 21, 1991, the AJ found

that appellant was entitled to nonpecuniary damages "to the fullest

extent permitted by law." The AJ stated that this was for the emotional

and psychological distress and physical illness appellant sustained from

November 21, 1991 to the date appellant was removed, which the record

shows was February 12, 1993. In awarding these nonpecuniary damages,

the AJ credited the opinion of appellant's treating psychologist that her

emotional injuries were caused by the agency's actions, and credited the

testimony of appellant and her husband that after the agency's actions

appellant's life changed in that she became socially withdrawn, was very

worried, did not want to eat, and did not do housework or cook.

The AJ also found that the appellant's pecuniary losses were caused by

the agency's actions. The AJ found that the agency should compensate

appellant for medical bills from November 21, 1991 to the date she was

removed. The AJ stated that the prescription drugs and registration

fees from appellant's health plan added up to $57.50. The AJ did not

compensate appellant for the medical expenses of her private physician

outside her health plan and psychologist because they were incurred

after appellant was removed. The AJ also recommended various equitable

remedies.

In a final decision dated November 23, 1994, which did not contain appeal

rights to the EEOC, the agency adopted the AJ's discrimination findings.

It agreed with the AJ's finding that appellant sustained past pecuniary

losses as a result of the discrimination and was entitled to reimbursement

of the above expenses from her health plan. The decision found that

appellant sustained nonpecuniary losses, but stated a decision on the

amount would be held in abeyance for 60 days. It also provided equitable

remedies. The decision stated that the agency would determine whether the

recision of the removal action was necessitated by the cancellation of the

notice of unacceptable performance, and if so, appellant would be returned

to her position and provided back pay and restoration of benefits.

By January 20, 1995, the agency determined that the removal action must be

rescinded, and that appellant was entitled to claim compensatory damages

for the removal since she had properly raised the matter before the MSPB.

It provided appellant an opportunity to submit additional evidence on

compensatory damages. After the appellant did so, the agency issued a

second final decision in June 1995 on appellant's compensatory damages

claim. It found that as a result of its discrimination, appellant

sustained emotional pain and suffering, mental anguish, marital strain,

depression, isolation, and a variety of physical ailments, including

chest and stomach pains and digestive problems. It found, however,

that appellant was not entitled to any past or future pecuniary damages.

It reasoned that it could not determine whether they were covered by

health insurance, and with regard to future expenses, no total amount or

objective proof was provided. The agency found, however, that appellant

was entitled to $85,000 in nonpecuniary damages.

The agency paid the $85,000 sum to appellant, restored her leave,

provided training to 145 of 148 supervisors with imminent plans to train

the rest, and issued unstated discipline against appellant's first and

second level supervisors. The record does not reflect whether back pay

was provided to appellant.

Both of the agency's final decisions included notices of a right to file

a claim for attorney's fees and costs. The agency awarded attorney's

fees for the work of at least one of appellant's attorneys.

ANALYSIS AND FINDINGS

Because appellant does not appeal the agency's findings with regard to

discrimination but appeals the amount of compensatory damages it awarded,

the issue before us is limited to the appropriateness of the amount of

compensatory damages awarded as well as certain equitable remedies.

Section 102(a) of the Civil Rights Act of 1991, codified as 42

U.S.C. �1981a, authorizes an award of compensatory damages as part of

make-whole relief for intentional discrimination. Section 1981 a(b)(2)

indicates that compensatory damages do not include back pay, interest

on back pay, or any other type of equitable relief authorized by Title

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

that may be awarded to appellant since the agency has more than 500

employees to $300,000. Past pecuniary losses are not subject to this

cap.<1>

Because the compensatory damages provision of the Act is not retroactive,

they are not available for acts of discrimination occurring prior to

the Act, i.e., November 21, 1991. Landgraf v. USI Film Products, 511

U.S. 244 (1994).

Compensatory damages may be awarded for past pecuniary losses,

future pecuniary losses, and nonpecuniary losses that 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, EEOC Notice No. N 915.002 (July 14, 1992), at 8. Pecuniary

losses are out-of-pocket expenses incurred as a result of the employer's

unlawful action, including medical and other quantifiable out-of-pocket

expenses. Id. Past pecuniary losses are pecuniary losses incurred

prior to the date of the resolution of the damage claim. Id. at 8-9.

Future pecuniary losses are losses that are likely to occur after the

resolution of litigation. Id. at 9. Nonpecuniary losses are losses

that are not subject to precise quantification including emotional pain

and loss of health. Id. at 10.

Past Pecuniary Damages

The agency found that as a result of its discrimination, appellant

sustained, among other things, emotional injury including depression

and a variety of physical ailments such as chest and stomach pains and

digestive problems. This finding is supported by the record.

For example, appellant's husband testified that some three months after

the supervisor took over, appellant started complaining of chest and

stomach pain, and later had incidents of shortness of breath, trembling,

and cold hands, and would worry. Further, after appellant was removed she

started treatment with a psychologist in March 1993. Appellant complained

of the above mentioned physical symptoms, as well as loss of appetite

interests, libido, sleep disturbance, tearfulness, fatigue, and at

times nausea. The psychologist's May 1993 evaluation report stated that

psychological tests revealed appellant had strong feelings of confusion,

paranoia, and anxiety, all indicative of stressors associated with her

work place. It opined that appellant's anxiety and depression produced

physical problems, and that her psychological symptoms were causally

related to the work place abuses. It diagnosed appellant with depression.

Moreover, from March 1993 to July 1993, appellant sought treatment from

a private physician outside her health plan. In a May 1993 evaluation

report, the physician stated appellant developed chest pain, palpitations

and abdominal pain following harassment by her supervisor, and developed

situational depression and anxiety attacks. The physician opined that

"there appears to be a causal relationship" between appellant's employment

and her symptomatology, and recommended further diagnostic testing.

This included a recommendation for an esophagogastroduodenoscopy (EGD),

i.e., an invasive endoscopic examination of the entire esophagus, stomach,

and duodenum if the appellant continued to experience persistent abdominal

pain despite medication.

Since the agency found on November 23, 1994 that it discriminated

against appellant, past pecuniary damages are those connected with the

agency's discrimination through November 23, 1994, the date of the final

agency decision which resolved appellant's complaint with a finding

of discrimination.

In a February 26, 1995 evaluation report, appellant's psychologist

stated that he had been seeing appellant weekly since March 1993. At the

hearing appellant submitted a bill from the psychologist dated December

2, 1993 for $6,450. This included a weekly charge of $150 for office

therapy visits, and a charge of $1,500 for psychological testing. Although

appellant had been seeing the psychologist for 39 weeks as of December 2,

1993, the total balance due for weekly therapy visits indicated appellant

saw the psychologist for 33 weekly therapy visits.

The number of weeks between December 2, 1993 and November 23, 1994

are approximately 51. Given that appellant did not actually see her

psychologist each week in the past, and some visits will typically

be missed due to holidays and so forth, we estimate that appellant

would have attended 47 weekly visits during this time period. At a

rate of $150 per visit, this amounts to an additional cost of $7,050.

Accordingly, the past pecuniary damages connected with appellant's

treating psychologist's fees total $13,500.

Between March 1993 and July 1993 appellant saw the private physician

outside her health plan 14 times, primarily for digestive system

problems and stomach pain. At the hearing, appellant submitted a bill

from this doctor for $4,901.98, which consisted of charges for various

diagnostic cardiac procedures; diagnostic digestive system procedures,

including an upper gastro intestinal imaging and an EGD; office visits

for stomach pain, a fee of $670 for a narrative report directed to

appellant's psychologist and a charge $60 for a broken appointment.

There was a nexus between the agency's discrimination and appellant's

visits to this doctor and the need for the narrative report, but not

for the broken appointment. Accordingly, the past pecuniary damages

connected with the private physician's fees are $4,841.98.

Over all the visits, appellant incurred a total of 784 miles in automobile

travel seeing this physician. The Commission takes official notice that

the reimbursement rate the federal government provided its employees

when conducting official business in a personal automobile in 1993 was

25� a mile. Accordingly, the past pecuniary damages connected with the

mileage is $196.

In addition, appellant submitted a bill of $44.75 for a thyroid profile

in March 1993, a bill of $53.50 for a cardiac enzyme test in May 1993,

and a bill for $220 for a gastro imaging in July 1993. A preponderance of

the evidence indicates that there is a causal nexus between the agency's

discrimination and appellant's cardiac enzyme test and gastro imaging

since these expenses were likely related to further diagnostic testing

for appellant's chest pain and digestive problems. Accordingly, the past

pecuniary damages connected with these procedures are $273.50. However,

appellant failed to show a nexus between the agency's discrimination

and her thyroid profile of March 1993, and hence, this expense is not

compensable.

Appellant claimed that she had various smaller medical expenses related

to the agency's actions. She submitted 10 "registration" receipt

fees totaling $29 for seeing her health plan medical providers between

November 26, 1991 and February 1993. Some of the receipts appeared to

be unrelated to injuries allegedly caused by the agency's actions, such

as a vision examination, others did not specify the nature of the visits

or were undecipherable, and others were for cardiac exams, one of which

was referred to the psychiatry department. Appellant submitted receipts

for drugs purchased at her health plan pharmacy between February 1992 and

January 1993 totaling $22.50. Several did not note the drugs purchased.

We find appellant has been adequately compensated for the registration

and prescription fees she incurred for services by her health plan.

Finally, after appellant was removed she continued her individual

health insurance offered through the federal government from March

24, 1993 through December 31, 1993, a total of 40 weeks. The monthly

installment charges were $183.72, for a total of $1,701.79. Thereafter,

at the first opportunity to do so appellant's husband obtained health

insurance coverage for appellant in a family plan offered through his

federal employer. As appellant would not have incurred the $1,701.79

expense but for the agency's discriminatory removal, she is entitled to

reimbursement for this expense. However, this expense must be offset

by the amount appellant would have paid for insurance had she continued

her employment. This amount in 1993 in her home zip code was $20.78

every two weeks, a total of $415.60. Accordingly, the past pecuniary

expenses connected with the health insurance premiums are $1,286.19.

The agency found that it was not responsible for appellant's past medical

expenses because they were or may be covered by health insurance.

However, appellant is entitled, pursuant to the collateral source

rule, to the full amount of her pecuniary damages, even if some or all

of the expenses were paid by her or her husband's health insurance.

Wallis v. U.S. Postal Service, EEOC Appeal No. 01950510 (November 13,

1995). Accordingly, the agency may not use funds distributed by the

health insurance to offset an award of damages. Id. The total amount

of past pecuniary damages appellant is entitled to are $20,097.67.

Future Pecuniary Damages

On appeal, appellant argues that she is entitled to future pecuniary

damages to cover the treatment costs of her psychologist. At the EEOC

hearing in January 1994, appellant emphatically stated she was still

depressed because of the "manipulations, intimidations" of the EEO case.

Appellant's psychologist testified that appellant kept relapsing because

the litigation caused her to keep re-experiencing the stressors by

thinking about them. Appellant also testified that she was still

depressed and anxious because of the harassment she was subjected to

during her employment. Based on the foregoing, we find that up to March

27, 1996, the date through which as explained below there is sufficient

documentary evidence of future pecuniary damages, there was a causal

nexus between the discrimination found and appellant's emotional state.

In a February 26, 1995 evaluation report, appellant's psychologist

wrote that since appellant's progress had been slow, her visits would

be increased to twice weekly. In a July 31, 1995 progress report, the

psychologist stated that he had been seeing appellant on a biweekly basis.

A brief from appellant's attorney received by the Commission in August

1995 stated that appellant continued to see her psychologist twice

a week. As recently as March 27, 1996, appellant's attorney submitted

a letter to the Commission stating that appellant was still in treatment

with her psychologist. Given that the most recent documentation by the

psychologist in the record is the progress report of July 31, 1995, and

there is no statement from the psychologist estimating how long treatment

was expected to continue, there is insufficient evidence to make an

estimate beyond the attorney's March 27, 1996 letter concerning how

long appellant's treatment will continue, and hence future pecuniary

damages for such treatment will not be awarded beyond that date.

Smith v. Department of Defense (Army and Air Force Exchange Agency),

EEOC Appeal No. 01943844 (May 9, 1996)(insufficient evidence to award

future pecuniary damages for mental therapy visits where doctor stated

"if things remain as they are, [complainant] will need to be in therapy

for an undetermined amount of time," and the complainant did not update

this statement. This evidence was contrasted with a decision where

the Commission awarded future pecuniary damages for therapy where a

psychiatrist stated that the complainant was likely to require treatment

for the next five years).

The period between November 24, 1994 and February 26, 1995 is

approximately 13 weeks. The period between February 27, 1995 and March

27, 1996 is approximately 56 weeks. The total regularly scheduled visits

during the first period would be 13 (once a week), and the total regularly

scheduled visits during the second period would be 112 (twice a week).

Given that appellant did not actually see her psychologist each week

in the past, and some visits will typically be missed, we estimate that

appellant would have had 110 visits during this time period. At a rate

of $150 per visit, appellant's future pecuniary damages total $16,800.

Nonpecuniary Damages

Co-worker 1, a realty specialist, testified that prior to the supervisor,

appellant was always pleasant, socialized with co-workers, and got along

with everybody. She testified that the supervisor screamed at appellant

at least every week, that appellant reacted by crying, and that the

reactions worsened as time went on. Co-worker 2, a geographer added

that after being subjected to the supervisor's verbal abuse appellant's

personality changed and she did not want to come to work.

The record contains short medical notes covering various periods between

July 1991 and July 1992 which state appellant was disabled from work.

For most of the longer periods of disability appellant was given a

diagnosis, in several instances of depression and/or anxiety.

Appellant indicated in an investigatory hearing in February 1992 that

she was "happy" outside of the office because she and her husband had

"so many occasions" that there was no time to be stressed, and that she

was an active choir member in two parishes.

Appellant's husband stated that prior to working for the supervisor,

appellant was easy going, smiled frequently, would always accompany him on

his many social interactions, and did not complain of physical illness. He

testified that appellant loved to cook and prepared meals daily and did

other household activities. Appellant provided consistent testimony.

Appellant's husband testified that after the supervisor took over,

appellant stopped smiling, would stay home and not see friends,

and stopped doing household chores. The husband stated that he and

appellant rarely had marital relations. Appellant testified that she

became depressed and anxious two to three months after working for

the supervisor.

At the EEOC hearing of January 1994, appellant testified that especially

after being removed, but also while working for the supervisor she

was very socially withdrawn, even from family, and no longer danced,

a formerly routine activity. Appellant testified that when she learned

of her removal she was unable to do any household work except sometimes

washing clothes. She testified that she was still in the choir, and

taught a church course.

Appellant's psychologist's evaluation report of May 1993 indicated that

appellant appeared lethargic, her facial expression was sad and worried,

and her speech was non-spontaneous and slow. The report indicated that

appellant reported that in her activities of daily living she got up

mornings for usual household chores, but at times felt fatigued and went

back to bed.

The agency referred appellant for a one time evaluation that was conducted

by a psychologist in September 1993. The psychologist found that on

psychological tests appellant presented herself with severe levels

of depression usually only found in hospitalized individuals, and the

validity check on two tests indicated extreme "faking bad." With regard

to the latter matter, he explained that in one test appellant endorsed

virtually every question going to depression and a disturbed state.

This psychologist indicated it was a real possibility appellant believed

what she said even though it was not true.

On appeal, appellant argues that her injuries are such that she is

entitled to the fullest extent of compensatory damages allowed by law,

i.e., $300,000. There is no precise formula for determining the amount

of damages for nonpecuniary losses. An award of compensatory damages

for such losses should reflect the nature and severity of the harm and

the duration or expected duration of the harm. Further, a complainant

must establish a nexus between the harm and the discrimination found.

It is a Commission goal to make damage awards for emotional harm

consistent with awards in similar cases. See e.g., Carpenter

v. Department of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995)

(award of $75,000 in nonpecuniary damages for deterioration in appellant's

medical and emotional condition resulting in his disability retirement.

Aggravation of asthma; panic attacks, insomnia, digestive problems, loss

of spirit, social withdrawal, feelings of hostility and irritability,

loss of libido); Finlay v. United States Postal Service, EEOC Appeal

No. 01942985 (April 29, 1997) (award of $100,000 in nonpecuniary damages

for severe psychological injury over four years which was expected to

continue for an indeterminate period of time. This included ongoing

depression, frequent crying, concern for physical safety, loss of charm,

lethargy, social withdrawal, concern for physical safety, recurring

nightmares and memories of harassment, a damaged marriage, stomach

distress, and headaches).

Due to emotional distress, appellant had depression, anxiety, paranoia,

confusion, moodiness, insomnia, social withdrawal, tearfulness,

fatigue, loss of libido, loss of self-esteem, and chest and stomach

pains, digestive problems, and incidents of shortness of breath.

Medical evidence in the record indicates the chest and stomach pains,

and digestive problems were quite severe. Appellant repeatedly sought

medical treatment for these problems, including an EGD after she was

removed in 1993.

Given that the agency's discriminatory conduct from November 21, 1991

through appellant's removal resulted in severe psychological injury which

caused substantial physical discomfort, and the awards the Commission has

made in similar cases, we find that appellant is entitled to nonpecuniary

damages in the amount of $125,000. This takes into account all of

appellant's emotional and physical problems as well as the fact that as a

result of digestive system problems caused by the agency's discrimination,

she underwent an EGD, an invasive diagnostic procedure involving a scope.

Back and Front Pay

On appeal appellant argues that she is entitled to front pay. She does

not discuss any other equitable remedy.

The May 1993 evaluation report variously stated that it was possible that

appellant could return to work with appropriate structure and continued

psychotherapy, and that she was capable of doing so with supportive

psychotherapy. In the summer of 1993 the agency offered to reinstate

appellant outside her former division to the position of automation

clerk, GS-4. Appellant declined the offer, indicating to the agency

that she did not want to take a demotion.<2> Appellant stated that the

agency later offered her the same position with GS-7 pay, and testified

in part that she declined the offer because by that time she was unable

to manage working due to her mental health. Appellant also testified

that she was unable to work under the management of the entire U.S. Army

Los Angeles District Corps of Engineers because of the "manipulations"

of the lawyer representing the agency with the EEO case and her fear

that everyone would look at her, resulting in further erosion of her

self-esteem. She added that she was too depressed to work for the

agency, and that winning and closing of her EEO case would change this.

Appellant acknowledged that her psychologist advised her that she should

work, but appellant believed she was unable to do so.

At the EEO hearing, appellant's psychologist testified that with a

different supervisor and a less stressful work environment, he believed

appellant could return to work at that time. He then qualified this by

stating he was not sure she was capable of returning due to the paradox

of depression where a person may feel she cannot work or be unable to

do so, even though work would likely improve the depression. When the

agency attorney, apparently based on appellant's testimony, appraised the

psychologist in further questioning that appellant received agency job

offers, the psychologist testified that he did not think appellant was

ready to return to work, that perhaps she could do so in a few months,

and he had no problem with her returning if an appropriate milieu had

been offered.

In a February 1995 evaluation report of appellant, the psychologist

opined that appellant was temporarily totally disabled, it was uncertain

if this would become permanent, and the goal date she could return to

work was June 1995.

After the agency sent appellant the letter in January 1995 providing

her an additional opportunity to prove compensatory damages, appellant

submitted her psychologist's February 1995 evaluation report indicating

she was unable to work. The record reflects that in May 1995 the

agency rescinded a proposal to remove appellant issued in April 1995

for disability because of medical information that she may be able to

return to work on June 30, 1995. In late June 1995 the agency asked

appellant for a projected date she could return to work because June

30, 1995 was approaching. In a July 31, 1995 progress report, the

psychologist opined that appellant remained temporarily totally disabled,

it was uncertain when she would return to the work place, and she was

off work until August 30, 1995. A March 1996 appeal letter written by

appellant's attorney states that appellant's psychologist now believes

it is unlikely appellant can return to the work place due to her major

depression and anxiety disorder.

Despite appellant's claim to the contrary, we find that she was able to

work in the late 1994 early 1995 time frame when the agency rescinded the

removal and made inquiries of her aimed at reinstatement. Appellant's

and her psychologist's claims to the contrary are incredible in light of

their testimony at the EEOC hearing. Appellant's testimony that she was

unable to work under the management of the entire U.S. Army Los Angeles

District Corps of Engineers because of "manipulations" of the lawyer

representing the agency with the EEO case and her fear that everyone

would look at her does not persuasively explain why she could not work

under a different set of supervisors. Appellant acknowledged at the

hearing that her psychologist advised her in therapy that she should work.

The psychologist also testified that he believed appellant could work if

she did not return to the same environment. While he later qualified

this testimony, we find this testimony, together with the testimony of

appellant, indicates the psychologist believed appellant could work.

While the record does not reflect whether the agency offered appellant a

job after it rescinded the removal, it shows she indicated to the agency

that she would not work. In any event, even when a job offer is made

and rejected, back pay is owed up to the point the offer was declined.

29 C.F.R. �1614.501(b)(iii). Since the agency determined by January 20,

1995 that it would rescind the removal, appellant was entitled to back

pay and other benefits from the time she was removed to January 20, 1995.

The record does not reflect to what extent appellant has been provided

back pay. Appellant is not entitled to front pay because the agency

communicated to her that it wished her return, and her stand that she

was unable to work for the entire U.S. Army Los Angeles District Corps

of Engineers is not supported by the record.

Attorney's Fees and Costs

It is not clear to what extent attorney's fees and costs are still

at issue. The record reflects that the agency paid $23,937.50 to

attorney A.S., who was the primary attorney in appellant's EEO case.

As it appears the agency did not make other payments, and appellant has

sought and is seeking payments for the fees and costs of other attorneys,

the Commission will address this matter.

Where a complainant is a prevailing party, the agency or Commission may

award reasonable attorney's fees and costs (including expert witness fees)

incurred in the processing of the EEO complaint. 29 C.F.R. �1614.501(e).

Over the course of the processing of her EEO and other claims, appellant

was represented by five attorneys. Appellant asked for $845 that she

was billed and paid to attorney L.H. for 14.25 hours of work he spent

preparing and representing appellant at the agency investigative hearing

in the instant case. Appellant asked for $2,000 she paid attorney A.S. to

represent her in the instant EEO case and $2,000 she paid him to represent

her in MSPB litigation controverting her removal. Reasonable attorney

fees for such work are generally allowed under Commission regulations.

This includes the litigation before the MSPB, even though it was deprived

of jurisdiction after the removal was rescinded, since the litigation

was necessary to preserve the EEO removal issue. Appellant asked for

compensation she paid attorney M.G. to represent her in her Office of

Workers' Compensation claim. The Commission does not award appellant

such fees since this litigation was unrelated to her prevailing in the

EEO forum on the instant discrimination claim. For the same reason,

the Commission cannot award appellant the $1,500 retainer fee she

paid attorney D.H. to represent her in an unspecified matter against

the agency.

Appellant also asked for costs she personally paid in her litigation.

Appellant asked for $41.15 for stamps, document handling, mailing, and

copying expenses in her EEOC litigation, $27.77 for mailing, copying,

and tabs in her MSPB litigation, and $11.32 for copying and a telefax

in unspecified litigation. Such expenses are generally compensable

under Commission regulations. Fiene v. United States Postal Service,

EEOC Petition No. 04920009 (September 3, 1992), Carver v. United States

Postal Service, EEOC Petition No. 04950004 (June 19, 1996).

To the extent appellant is asking the agency for reimbursement for

fees she paid her attorneys that the agency already paid, appellant is

advised that the agency is not required to make duplicate payments for

the same fees.

ORDER

The agency is ordered to take the following remedial actions:

(1) For the period from the date of appellant's removal through January

20, 1995, the agency shall provide appellant a check for the appropriate

amount of back pay and interest on back pay, and provide other benefits,

under pertinent Office of Personnel Management Regulations, and 29

C.F.R. �1614.501, if it has not done so already, within 60 calendar

days of the date this decision becomes final. Appellant is ORDERED to

cooperate in the agency's efforts to compute the amount of back pay,

interest, and benefits due, and to provide all necessary information

the agency requests to help it comply.

(2) Within 60 calendar days of the date this decision becomes final,

the agency shall provide appellant a check for damages, which includes

past pecuniary, future pecuniary, and nonpecuniary damages in the amount

of $76,897.67.<3>

(3) Within 30 calendar days of the date this decision becomes final,

the agency shall solicit necessary documentation from appellant to make a

determination on any attorney's fees and costs due, if any, in accordance

with this decision and Commission regulations. If the parties are unable

to reach an agreement on the amount of attorney's fees and costs due, the

agency, shall pay any undisputed fees and costs and issue a final agency

decision, appealable to the Commission, on the disputed fees and costs.

29 C.F.R. �1614.501(e)(2)(ii)(A).

If there is a dispute about the amount of back pay, interest due,

and/or other benefits, and compensatory damages, the agency is ORDERED to

provide appellant a check for the undisputed amount within the applicable

time limits set forth above. Appellant 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 paragraph 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 verifying

that the corrective action has been implemented.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)

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 appellant. If the agency does not comply with the Commission's

order, the appellant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503 (a). The appellant also has the right

to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,

the appellant 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. �� 1614.408 and 1614.409. 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

appellant files a civil action, the administrative processing of the

complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. �1614.410.

ATTORNEY'S FEES (H1092)

If appellant has been represented by an attorney (as defined by

29 C.F.R. �1614.501 (e)(1)(iii)), he/she is entitled to an award of

reasonable attorney's fees incurred in the processing of the complaint.

29 C.F.R. �1614.501 (e). The award of attorney's fees shall be paid

by the agency. The attorney shall submit a verified statement of fees

to the agency -- not to the Equal Employment Opportunity Commission,

Office of Federal Operations -- within thirty (30) calendar days of this

decision becoming final. The agency shall then process the claim for

attorney's fees in accordance with 29 C.F.R. �1614.501.

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that you have the right to file

a civil action in an appropriate United States District Court WITHIN

NINETY (90) CALENDAR DAYS from the date that you receive this decision.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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. If you file a request to reconsider and also file a

civil action, filing a civil action will terminate the administrative

processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1092)

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:

October 15, 1998

Date

Frances

M.

Hart

Executive Officer

Executive Secretariat1 Appellant is

not entitled to compensatory damages or

attorney's fees and costs in connection

with her ADEA claim. Taylor v. Army,

EEOC Request No. 05930633 (January

14, 1994), 29 C.F.R. �1614.501(e).

However, this does not reduce the

amount of compensatory damages or

attorney's fees to which the appellant

is entitled because all the actions

that were discriminatory were found

to have also violated Title VII.

2 Appellant was not under an obligation to accept this offer to mitigate

her injury because this position, even if offered with save pay status,

would constitute a demotion. Todd v. United States Postal Service, EEOC

Petition No. 04920007 (August 27, 1992). Appellant testified that she

received additional reinstatement offers, but there is no information

on them in the record.

3This figure is the sum of $20,097.67 in past pecuniary damages, $16,800

in future pecuniary damages, and $125,000 in nonpecuniary damages,

minus $85,000 in nonpecuniary damages already paid by the agency.