01976921
05-18-2000
Margaret Quinn, Complainant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Margaret Quinn v. Social Security Administration
01976921
May 18, 2000
Margaret Quinn, )
Complainant, )
)
v. ) Appeal Nos. 01976921
) 01972185
Kenneth S. Apfel, ) Agency Nos. SSA 623-92
Commissioner, ) SSA 477�94
Social Security Administration, ) Hearing Nos. 160-95-8405X
Agency. ) 160-95-8406X
_____________________________________)
DECISION
Margaret Quinn (complainant) filed an appeal with this Commission from a
final decision of the Social Security Administration (agency) concerning
her complaint of unlawful employment discrimination, in violation of
Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42
U.S.C. � 2000e et seq., and the Rehabilitation Act of 1973, as amended,
29 U.S.C. � 791 et seq.<1> This appeal is accepted in accordance with 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).
ISSUE PRESENTED
The issue presented on appeal is whether the agency properly awarded
and calculated the amount of pecuniary and non-pecuniary compensatory
damages and attorney's fees and costs to which complainant is entitled.
BACKGROUND
Complainant, an Administrative Law Judge, filed two EEO complaints
on March 4, 1994 and March 9, 1994, alleging a pattern of on-going
harassment on the bases of sex (female), disability (arthritis), and
reprisal (prior EEO activity). Following an investigation, a hearing
took place before an EEOC Administrative Judge (AJ) who recommended a
finding of sex-based discrimination and constructive reassignment.
The AJ recommended the following remedy: (1) complainant's AWOLs and any
negative documentation associated with complainant's AWOLs be expunged
from her official personnnel file; (2) the reimbursement for complainant's
moving expenses under appropriate Office of Personnel Management (OPM)
regulations and policy for a Permanent Change of Status location to the
Albany, New York office; (3) the reimbursement of any cost and expense
associated with successfully prevailing on the harassment claims, along
with any incurred and reasonable attorney's fees and costs; (4) an award
of compensatory damages for the harassment to which complainant was
subjected; (5) that the agency ensure that complainant is not retaliated
against; (6) that the agency post a notice of discrimination; and
(7) that the agency provide appropriate remedial EEO training to the
responsible officials.
The agency accepted the AJ's finding of discrimination, but modified the
remedial relief, in its Final Agency Decision dated December 27, 1996, as
follows: (1) the complaint will be paid for the time she was charged AWOL;
(2) the agency will pay reasonable attorney's fees, costs, and expenses
associated with successfully prevailing on the harassment charge, subject
to the submission of verified expenses; (3) the complainant's receipt
of compensatory damages is contingent upon her submission of objective
evidence, including quantifiable out-of-pocket expenses and statements
from the complainant and others, including family members and health care
providers; (4) the notice to employees in the Buffalo Hearing Office will
be posted for 30 days after the receipt of this Final Agency Decision.
On appeal, complainant claims that: (1) she is entitled to $250,000.00
in non-pecuniary compensatory damages; (2) she is entitled to the lost
value of her home which totals $8,400.00; (3) she is entitled to the
unreimbursed closing costs which total $425.00; (4) she is entitled to
the reimbursement of annual leave associated with her reassignment which
totals $2,832.00; (5) she was not paid for the time she was charged AWOL
or received proof that all negative documentation associated with being
charged with AWOL was expunged from her official personnel file; and (6)
she is entitled to additional attorney's fees and costs associated with
this appeal.
ANALYSIS AND FINDINGS
Section 102(a) of the 1991 Civil Rights Act authorizes an award
of compensatory damages for all post-Act pecuniary losses, and for
non-pecuniary losses, such as, but not limited to, emotional pain,
suffering, inconvenience, mental anguish, loss of enjoyment of life,
injury to character and reputation, and loss of health. In this regard,
the Commission has authority to award such damages in the administrative
process. See West v. Gibson, 527 U.S. 212 (1999). Compensatory damages
do not include back pay, interest on back pay, or any other type of
equitable relief authorized by Title VII. To receive an award of
compensatory damages, a complainant must demonstrate that he has been
harmed as a result of the agency's discriminatory action; the extent,
nature and severity of the harm; and the duration or expected duration
of the harm. Rivera v. Department of the Navy, EEOC Appeal No. 01934157
(July 22, 1994), req. for reconsid. denied, EEOC Request No. 05940927
(December 11, 1995); Compensatory and Punitive Damages Available Under
Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 at
11-12, 14 (July 14, 1992). A complainant is required to provide objective
evidence that will allow an agency to assess the merits of a complainant's
request for emotional distress damages. See Carle v. Department of the
Navy, EEOC Appeal No. 01922369 (January 5, 1993).
There are no definitive rules governing the amount of non-pecuniary
damages to be awarded. However, non-pecuniary damages must be limited
to the sums necessary to compensate the injured party for actual harm,
even where the harm is intangible, See Carter v. Duncan - Higgins, Ltd.,
727 F.2d 1225 (D.C. Cir. 1984), and should take into account the severity
of the harm and the length of time that the injured party has suffered
the harm. Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652
(July 17, 1995). Non-pecuniary and future pecuniary damages are limited
to an amount of $300,000.00. The Commission notes that for a proper
award of non-pecuniary damages, the amount of the award should not be
"monstrously excessive" standing alone, should not be the product of
passion or prejudice, and should be consistent with the amount awarded
in similar cases. See Damiano v United States Postal Service, EEOC
Request No. 05980311 (February 26, 1999); Ward - Jenkins v. Department
of the Interior, EEOC Appeal No. 01961483 (March 4, 1999) (citing Cygnar
v. City of Chicago, 865 F. 2d 827, 848 (7th Cir. 1989)).
Non-pecuniary Compensatory Damages Award:
The agency awarded complainant $5,000.00 in non-pecuniary compensatory
damages. In support of its award the agency set forth the evidence
as follows<2>:
Evidence in Support of Compensatory Damages Award:
The complainant stated and the record shows that she was harassed from
1987 until 1994. Complainant was the target of constant harassment from
the office manager and chief ALJ. Complainant states that such harassment
caused her to become depressed. During the relevant time period, her work
was separated from the male ALJs' and was not give the same priority.
In addition, complainant was the target of inappropriate remarks and
was constantly ridiculed. From December, 1991 until August, 1992, she
was unfairly questioned about her travel voucher, and the office manager
and chief ALJ constantly scrutinized and threatened to discipline her.
Complainant affirmed that this caused her to suffer severe insomnia
for which her doctor prescribed sleeping medication. In addition,
complainant described the situation as so stressful that she had to take
tranquilizers. The record also shows that during the summer of 1993,
complainant's law clerk had to take mental health leave because the work
environment was so stressful. While complainant's clerk was on leave, the
male judges had two clerks doing their work and complainant had no clerks
assisting her. In 1993 and 1994, the complainant became more depressed
over the way she was being treated in the office. Complainant affirmed
that she felt overwhelmed and fatigued and that her blood pressure rose.
She also stated that she was given an inappropriate finger gesture by
the chief judge in a public hall at work.
The complainant states that management was not courteous or compassionate
to her. She is disabled by severe arthritis in her knees and has
a disability sticker in her car. As a result, she frequently had
to use crutches or a cane. After complainant requested that she be
relieved from travel, it took 10 weeks for her request to be granted.
After she returned to full travel status, she was immediately assigned
two case loads out of state where no ALJ had ever been assigned before.
The record also shows that she was unfairly marked AWOL on two days in
December, 1994. The complainant believed that she developed a panic
disorder because whenever she would approach the office, her chest would
tighten and her stomach would become nauseated.
The complainant further affirmed that she was devastated when she
had to move to Albany from Buffalo. She had to leave behind her
80-year-old mother, her relationship, and many friends and family.
She lost her professional contacts and believed that her reputation
in the community was affected because prior to her transfer to Albany,
the employees were told that the complainant would be terrible to work
with and that she always filed lawsuits. In addition, complainant
was forced to sell her house that she had owned and lived in since she
was a young lawyer. Even after she transferred to Albany, complainant
continued to be ridiculed in public back in Buffalo. The complainant,
lastly, affirmed that she continues to feel depressed when she recalls
her treatment at the Buffalo Hearing Office and has completely lost her
zeal for her work. She further states that because of the turmoil that
she endured, she plans to retire 5 years earlier.
Complainant's treating physician (P1) affirmed that in February, 1992,
he prescribed Doxepin because the complainant was having trouble sleeping
and was very depressed. P1 stated that complainant was suffering from
clinical depression and prescribed Tofranil. P1 further affirmed that
complainant suffered from "work related mental and emotional stress
and work-related depression in 1992," which was caused by tension and
harassment in the workplace.
One of complainant's co-workers (W1) (female) affirmed that the workplace
made the complainant depressed, anxious, and tearful. She also noted a
time when the complainant had a reduced concern for her appearance, which
she believed was a symptom of her mental state. An ALJ (W2) (female)
stated that when she would speak with complainant about her employment
with the agency, complainant became emotional and started crying.
W2 noted that this behavior was uncharacteristic of complainant who
was usually confident and self-assured. Another ALJ (W3) (male) stated
that as a result of management's treatment of complainant, she became
anxious, nervous, withdrawn, and at times was on the verge of tears.
Complainant's sister (W4) noted that complainant had become anxious,
unhappy, and depressed over her treatment at work, but noted that despite
the pressure, "she continued to get out her cases and do her job."
She also stated that complainant's relocation to Albany disrupted her
relationship with family members and personal relationships. Another ALJ
(W5) (male) reiterated instances of discriminatory treatment against
complainant. W5 stated that complainant was humiliated in the presence
of colleagues, experienced loss of self- esteem, stress, hopelessness, and
was ultimately forced to leave Buffalo. A special friend of complainant's
(W6) (male) stated that complainant was a strong, dedicated, enthusiastic
and thoughtful worker who became unhappy, stressed, depressed and gained
weight as a result of her work environment. He also stated that the
office environment affected not only their relationship, but her health
and career. He finally stated that her move to Albany affected their
relationship because they have incurred large bills as a result of extra
travel and increased phone bills.
Final Agency Decision (FAD):
According to the agency, the evidence indicates that complainant was
generally stressed and depressed about the work environment and was
subjected to constant harassment at work. While complainant visited
her physician in 1992 for depression and insomnia, the agency argues
that the evidence does not indicate when complainant started taking
the prescription, whether she in fact took the medication, how much
the medication cost, how long she took it, and whether she continued
and still continues to take the medication. Further, the agency argues
that despite complainant's consistent depression, there is no evidence
that she sought professional counseling for relief. In addition, the
agency asserts that complainant continued to do her work daily.
The agency found that the harm complainant suffered was not severe,
and at best was aggravating. The agency noted that during the years
complainant was in the harassing environment, at no time did she seek
long-term medical treatment or professional counseling. The agency
further argues that complainant's problems were not so severe as to
impair her productivity and drive to work.
While complainant was harassed as far back as 1987, the agency noted
that complainant can only recover for the harm from November, 1991
through 1994. While the complainant affirmed that she continues to be
depressed, the agency argues that there is no evidence that complainant
is seeking medical treatment for such depression.
In support of its award, the agency cites to the case Lawrence
v. United States Postal Service, EEOC Appeal No. 01952288 (April
18, 1996). The complainant in Lawrence was found to be a victim of
sexual harassment. The complainant in Lawrence submitted evidence
that she suffered weight loss, nausea, stomach problems and headaches
because of her supervisor's conduct. She presented no evidence from a
physician or counselor. She also stated that she had to use sick leave
and her work performance declined because she could not concentrate, was
irritable and experienced anxiety attacks. There was also evidence that
the complainant suffered embarrassment and humiliation, became nervous
and upset at the supervisor's conduct, was often distraught and cried.
The agency noted that the Commission awarded a compensatory damages
award of $3,000.00 to the complainant in Lawrence.
The agency also cited the case Benson v. Department of Agriculture,
EEOC Appeal No. 01952854 (June 27, 1996). In Benson, the complainant
was the victim of race and reprisal discrimination when he was, inter
alia, denied promotional opportunities and issued disciplinary action.
In Benson, the complainant asserted that he was subjected to a four-year
reprisal campaign that caused his business to suffer and his marriage to
break up. The complainant further stated that he experienced stress,
insomnia, fatigue, and developed skin and scalp rashes. However,
the complainant never sought medical treatment for these conditions.
He stated that he was withdrawn, isolated, depressed, and obsessed with
his work situation. The agency issued, and the Commission upheld, an
award of $5,000.00 in that case. The Commission noted that the record did
not support the complainant's allegation that the agency's action caused
his outside business and marriage to fail. In addition, the Commission
found that the record did not support the finding that his insomnia and
skin condition was caused by the adverse actions by the agency.
Lastly, the agency cites Rountree v. Department of Agriculture, EEOC
Appeal No. 01941906 (February 15, 1996). In Rountree, the complainant was
found to be a victim of race and sex discrimination when the agency rated
his performance as "fully successful." The complainant, in Rountree,
stated that he experienced depression, feelings of inadequacy and failure,
increased fatigue, increased irritation, decreased ability to concentrate
at work, decreased physical activity, decreased libido, weight gain, and
decreased enjoyment of life. In addition, the complainant's condition was
diagnosed as dysthymia which did not include a major depressed episode.
The Commission awarded $8,000.00 to the complainant in Rountree.
The agency argues that the present case is similar to the cases cited
above, and accordingly, argues that its award of $5,000.00 should be
upheld by the Commission.
Commission's Findings:
We disagree with the agency and find sufficient evidence to support a
compensatory damages award of $50,000.00 in this case.
In the present case, the evidence clearly shows that complainant was
subjected to daily ridicule and and harassment over a period of, at
least three years.<3> In addition, according to complainant's physician,
the harm she suffered (as described above) was directly caused by the
adverse actions of the agency.<4> Moreover, complainant's physician
stated that she suffered from clinical depression and insomnia during
the year 1992. P1 even prescribed complainant medication for such
ailments. While the agency argues that the evidence fails to show
whether complainant, in fact, ingested such medication, we find that
based on the record, it is reasonable (absent evidence to the contrary)
to assume that complainant did in fact take the medication prescribed
by her physician. While complainant's physician did not describe, in
detail, the dates that complainant suffered from, or will continue to
suffer from, depression, insomnia and other anxiety related ailments,
we find the statement by P1, complainant, several co-workers and friends,
to be sufficient to show that complainant was severely emotionally harmed
over a period of at least seven years. In addition to the physician's
statement, we find evidence, from complainant's testimony, as well as
several corroborating witnesses' testimony, that she has lost the zeal
she formerly held for her job and continues to suffer from depression
and sadness when she thinks about the harassment she endured. Lastly,
we find that the record indicates that the constructive transfer from
Buffalo to Albany caused substantial emotional harm to complainant.
Having carefully considered the facts of this case, the Commission finds
that complainant is entitled to non-pecuniary damages in the amount of
$50,000.00. In reaching this amount, the Commission has considered a
number of factors. For example, we considered the nature and severity
of the discrimination, as well as the nature, severity, and duration of
complainant's emotional distress and related symptoms.
We also considered the amounts awarded in similar cases. We note that
there have been several recent Commission decisions which have awarded
non-pecuniary damages for emotional distress. For example, in Bernard
v. Department of Veterans Affairs, EEOC Appeal No. 01966861 (July 17,
1998), the Commission awarded $80,000.00 to a complainant who was denied
a reasonable accommodation and non-selected for a position in May, 1992.
Complainant, through his own testimony and the testimony of his friends
and family, presented evidence that he experienced symptoms of depression,
as well as headaches, ringing in his ears, vomiting, raised blood
pressure, grinding of his teeth, and insomnia. Complainant's dentist
affirmed that the stress of complainant's job situation caused him to
have trouble sleeping and to grind and clench his teeth at night, which
resulted in dental pain and necessitated the use of a night guard and
sedative medication. We note that the complainant in Bernard sustained
such injuries over a five-year period.
In Economou v. Department of the Army, EEOC Appeal No. 01983435 (August
5, 1999), the Commission awarded $35,000.00 to a complainant who was
retaliated against by the agency for prior EEO activity. The Commission
found the evidence established that the agency's adverse actions directly
caused complainant to suffer from mild depression and anxiety, for which
he was prescribed Xanax over a period of six months.
In Terrell v. HUD, EEOC Appeal No. 01961030 (October 25, 1996), the
Commission awarded $25,000.00 to a complainant who was subjected to
discrimination based upon sex when he was non-selected for a position
in 1993. The complainant in Terrell presented evidence of a number
of emotional problems, including sleep problems, frequent crying,
embarrassment, mental anguish, loss of self-esteem, introversion
and disruptions in his relationships with his family and friends.
In addition, his psychiatrist determined that complainant was suffering
from depression and suicidal thoughts. Lastly, the Commission found
sufficient evidence to show that complainant's emotional harm lasted
approximately 18 months. The Commission found that the majority of
complaint's emotional problems were not shown to be caused by the adverse
actions of the agency. The Commission however, found that complainant's
marital problems and financial difficulties were, to a limited extent,
exacerbated by the discrimination.
Lastly, the Commission in Sinnott v. Department of Defense, EEOC Appeal
No. 01952872 (September 19, 1996) affirmed an award of $20,000.00 in
non-pecuniary damages to a complainant who had been the victim of sexual
harassment over a period of 14 months. The complainant in Sinnott
asserted that she suffered from nightmares and heart palpitations.
In addition, the complainant claimed that the discrimination affected
her marriage and her personality. Lastly, the complainant alleged that
she is now apprehensive about working with males. Complainant failed
to provide any statements from medical professionals, but did provide
several statements from family and friends.
While we find the nature and severity of complainant's harm comparable
to the harm in Bernard, Economou, Terrell and Sinnott, the record shows
that the duration of complainant's harm (at least three years<5>) to
be considerable and more akin to the five-year duration in Bernard.
Accordingly, we find $50,000.00 to be a reasonable award.
We note that the cases cited by the agency in support of its FAD,
are distinguishable from the instant case. In Rountree, supra, we
concluded that most of complainant's emotional distress stemmed from
factors other than the discriminatory conduct. In the present case,
all of complainant's emotional problems were directly caused by the
discriminatory conduct. We also find the present case distinguishable
from Lawrence, and Benson, supra. The harm directly caused by the
discriminatory conduct was less severe than the harm shown by complainant
in the present case. In addition, there was no evidence as to the
duration of the harm or that the Lawrence, and Benson complainants
sought professional medical help for their emotional distress.
Accordingly, and for the reasons set forth above, the Commission hereby
MODIFIES the FAD and awards complainant $50,000.00 in non-pecuniary
compensatory damages.
Pecuniary Damages
Lost Value of Home
Complainant alleges that she is entitled to the difference between the
appraised value of her Buffalo home and its sale price. The record
shows that when complainant's home was put on the market for sale it
was appraised at $105,900.00. However, over a year later the house
sold for $97,500 ($8,400.00 less than the originally appraised value).
Accordingly, complainant argues that she should be entitled to the loss
in the value of her home.
According to the agency, complainant's claim regarding the loss
value of her home is not reimbursable under federal regulations.
Specifically, the agency cites the Federal Travel Regulation (FTR)
Section 302-6.2(e) which specifically prohibits any Federal agency from
reimbursing an employee for a real estate loss suffered for any reason.
Furthermore, the agency argues that complainant's claim is specious.
Complainant argues that the appraisal was reasonable and that any agency
appraiser would have come up with the same market value of the home had
it conducted its own appraisal. The agency notes that the goal of real
estate agents' assessments (commonly referred to as a Buyer's Market
Analysis, or BMA) is to establish a competitive list price for the home.
The agency argues that this is no way determinative of the actual market
price or value of the home. The agency argues that, generally, sellers
list homes for a higher amount, and buyers adjust and negotiate their
offers accordingly. Lastly, the agency argues that the clear indicator
of the value of the home was the amount it actually sold at over a year
after the home originally went on the market. This fact indicates to
the agency that the original list price was overly optimistic.
The Commission the real estate agent's appraisal, in this case, without
more, to be insufficient to show that, but for the discriminatory actions
of the agency, complainant would have received an additional $8,400.00
for the sale of her home. Even if we could conclude that the home's true
value was $8,400.00 more than the selling price, there is no evidence
which shows that the discriminatory conduct of the agency caused the
reduction in its value. If the record established that complainant
was forced into hastily selling her home for a price less than what
comparable homes were selling for at the time, then she might have been
entitled to the difference. However, the record herein does not support
such finding.<6> Likewise, assuming the selling price was the correct
value of the home at the time of the sale, there is no evidence in the
record which indicates that the home's value would have increased over
time had she been able to remain in Buffalo. Accordingly, there is no
evidence in the record which supports the finding that complainant lost
money by selling the home when she did. Therefore, the Commission denies
complainant's claim for $8,400.00 for the lost value of her home.
Unreimbursed Closing Costs
Complainant claims that the agency failed to reimburse $425.00 of
her closing costs. The agency states that complainant was notified
on May 28 and June 12, 1997 of the amounts of payments made and
disallowed with respect to her relocation costs. The agency asserts
that the notices advised complainant that she could file a "reclaim"
justifying the expenditure if she disagreed. The agency further asserts
that it had no previous record of the "unsigned June 25, 1997 letter"
(submitted by complainant as an exhibit to her appeal) seeking reclaim
justification. The agency asserts that once it was notified of such
reclaim, complainant's letter was immediately hand-delivered to the
agency's Relocation Coordinator for his necessary action. The agency
further invited complainant to submit a reclaim voucher for the disputed
amount, along with supporting documentation directly to the Division of
Travel Management.
The Commission finds that complainant is entitled to reimbursement of
all closing costs associated with the purchase of a new home which was
directly caused by the agency's discriminatory constructive reassignment.
Accordingly, it shall reimburse $425.00 to complainant, as set forth in
the Commission's Order, herein below.
Unreimbursed Annual Leave Associated with Relocation
The complainant argues in her appeal that she had used annual leave
in the amount of $2,832.00 associated with her relocation, but that
the agency failed to reimburse such leave. The agency argues that the
complainant, in her affidavit, fails to specify the type of leave used,
the dates or amounts, or the specific purpose (i.e. house hunting, packing
and unpacking, actual travel on the moving date, etc.)<7> Furthermore,
the agency argues that complainant failed to indicate how she arrived
at the total she claims. Complainant provided the dates of six house
hunting excursions. According to the agency, the complainant's leave
record indicates that she used 8 hours of leave on Friday, March 11;
Friday March 20; Monday May 23; and Friday, June 17, 1994 for a total
of 32 hours.
Upon review of the record, we agree with the agency, and find no
justification or documentation for the amount of annual leave claimed
by complainant. Accordingly, we affirm the agency's award of 32 hours
of annual leave used by complainant as indicated above.
Reimbursement of AWOLs and Expungement:
The complainant argues that she has not received documentation that her
AWOLs have actually been expunged from her Official Personnel File.
In addition, she has not been reimbursed for being marked AWOL on
December 1, 1993 and December 17, 1993. In response, the agency provides
documentation that it has expunged complainant's OPF of any negative
documentation associated with her AWOLs and that a pay adjustment of
$55.43 was made in February, 1997.
We find sufficient documentation in the record showing that all negative
documentation associated with complainant's AWOLs has been expunged
from her personnel file. With respect to the reimbursement of the
AWOLs, while the agency has provided documentation that complainant was
reimbursed $55.43, there is no indication from the record that this is the
correct amount due complainant. Accordingly, the agency shall reimburse
complainant for being marked AWOL on December 1, 1993 and December 17,
1993, to the extent it has not already done so, as set forth in the
Order below.
Unreimbursed Attorneys Fees & Costs:
Complainant argues that while the agency reimbursed her for her attorney's
fees incurred through March 27, 1997, she has incurred additional
attorney's fees associated with this appeal which will be submitted
to the agency. The agency argues that an award of additional fees are
premature pending the resolution of the instant appeal and submission of
a fee petition. The Commission finds that since complainant, for the most
part, has prevailed on appeal, she is entitled to additional unreimbursed
attorney's fees and costs associated with this appeal, as set forth below.
Accordingly, for the reasons set forth above, the Commission hereby
AFFIRMS, in part, and MODIFIES, in part, the Final Agency Decision.
ORDER
To the extent it has not already done so, the agency shall:
Tender to complainant non-pecuniary compensatory damages in the amount
of $50,000.00. Proof of payment must be sent to the Compliance Officer,
as referenced below, even if the agency has already tendered payment;
Reimburse complainant for time she was marked AWOL on December 1, 1993
and December 17, 1993;
Reimburse complainant $425 for unreimbursed closing costs;
Reimburse complainant 32 hours of annual leave associated with relocation;
and
Award attorneys fees and costs associated with this appeal as set
forth below.
ATTORNEY'S FEES (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to
an award of reasonable attorney's fees incurred in the processing of the
complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall
be paid by the agency. The attorney shall submit a verified statement of
fees to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to the
complainant. If the agency does not comply with the Commission's order,
the complainant may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). The complainant also has the right to file a
civil action to enforce compliance with the Commission's order prior
to or following an administrative petition for enforcement. See 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �
1614.503(g). Alternatively, the complainant has the right to file a
civil action on the underlying complaint in accordance with the paragraph
below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407
and 1614.408. A civil action for enforcement or a civil action on the
underlying complaint is subject to the deadline stated in 42 U.S.C. �
2000e-16(c)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (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 (S0400)
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. 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 (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:
May 18, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1 On 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.
2 We find that the characterization of the evidence is largely undisputed
by the parties.
3 While the daily harassment occurred over a seven year period,
complainant is not entitled to compensatory damages for acts of
discrimination which occurred before enactment of the Civil Rights Act of
1991 on November 21, 1991. See Goodwin v. United States Postal Service,
EEOC Request No. 05930664 (July 20, 1994) (citing Landgraf v. USI Film
Products, 114 S.Ct. 1483 (1994).
4 The agency does not dispute the cause of the harm.
5 The record suggests that complainant continues to exhibit emotional
turmoil as a result of the discriminatory acts of the agency.
6 It took complainant over a year to sell her home.
7 There is no objective documentation to support complainant's leave
request.