Melody Mabardy, Complainant,v.Daniel R. Glickman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionMar 8, 2000
01983996 (E.E.O.C. Mar. 8, 2000)

01983996

03-08-2000

Melody Mabardy, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.


Melody Mabardy v. Department of Agriculture

01983996

March 8, 2000

Melody Mabardy, )

Complainant, )

)

v. ) Appeal No. 01983996

) Agency No. 960719

Daniel R. Glickman, )

Secretary, )

Department of Agriculture, )

Agency. )

___________________________)

DECISION

INTRODUCTION

Complainant filed the instant appeal from the agency's decision dated

March 25, 1998 finding that the agency had complied with a settlement

agreement entered into by the parties on December 18, 1997.<1>

ISSUES PRESENTED

The issues presented are: (1) whether the agency properly determined that

it had complied with the settlement agreement when it denied complainant's

request for non-pecuniary compensatory damages; and (2) whether the agency

breached the settlement agreement by failing to pay attorney's fees.

BACKGROUND

Complainant filed a formal equal employment opportunity (EEO) complaint

dated July 17, 1996. By letter dated January 27, 1997 the agency accepted

the following claims for investigation:

Whether the [agency] subjected the complainant to a pattern of

discrimination on the bases of age (over 40), disability (post traumatic

stress disorder), sex (female) and national origin (Chinese) when it:

denied her administrative leave as a reasonable accommodation [;] required

her to submit a list of work projects per pay period; delayed notifying

her of the life threatening comment made by a coworker; violated her

confidentiality by divulging her medical condition to the management

official who acted for [Supervisor A] on April 12, 1996 and to [Person

A] who signed the leave status memo for [Supervisor B] on May 30, 1996;

and, when [Supervisor A] failed to meet with the complainant as alluded

to in his letter of April 30, 1996.

Did the [agency] discriminate against the complainant on the bases of

national origin (Chinese) and sex (female) when it failed to take action

against [Person B] for making derogatory comments (i.e. "this is a woman

thing," "bickering and fighting," "this occurs when you have all women

together[,"] and, "this is just an Asian thing[.")]

Did the [agency] discriminate against the complainant on the basis of

reprisal when it limited her work-at-home schedule to 24 hours per week

which allegedly affected her ability to complete work assignments.

Complainant and the agency entered a settlement agreement on December

18, 1997 in which complainant withdrew her EEO complaint (960719).

The agreement provided the following:

Agency's Responsibilities

Within sixty (60) days of the date of this agreement, the Agency

shall restore 256 hours of annual leave and 293 hours of sick leave to

Complainant's leave account.

Within sixty (60) days of receipt by the Agency of the documentation

described in Complainant's Clause #3, the Agency shall (i) submit

paperwork to the National Finance Center (NFC) . . . for issuance of an

attorney fee payment not to exceed fifteen thousand dollars . . .

Within sixty (60) days of the date of this agreement, the Agency shall

process a cash award in the amount of $2,000.00 for Complainant.

4. To pay compensatory damages determined by the severed compensatory

damages process according to Attachment 1 not to exceed $75,000.00.

To retroactively give Complainant a quality step increase to GS-13,

step 4 as of January 1996. . . .

II. Complainant's Responsibilities

. . . .

Within sixty (60) days of the date of this agreement, Complainant shall

submit a verified statement of attorney fees.

Attachment 1 to the settlement agreement provided the following:

The agency agrees to pay proven non-pecuniary compensatory damages not to

exceed $75,000.00. The amount to be paid shall not include pecuniary or

out of pocket damages. The amount of non-pecuniary compensatory damages

shall be determined through the following process:

[Complainant] shall provide the [agency] with evidence supporting her

claim for non-pecuniary compensatory damages within 60 days of the date

she signs this agreement.

Within 30 days of receiving [complainant's] evidence, the [agency]

will issue a written decision citing the amount the agency will award

in non-pecuniary compensatory damages . . .

. . . .

If the [agency] decision is not accepted, the issue on OFO/EEOC appeal or

in federal court shall be the amount of compensatory damages she should

be awarded as damages stemming from the allegations of her EEO complaint.

The merits of her EEO allegations or her entitlement to compensatory

damages are not at issue in this compensatory damages process.

The agency shall pay [complainant's] attorney's fees not to exceed

$4,000.00 for representation during this compensatory damages process up

to the date she receives the [agency] decision. After that, attorney's

fees and costs shall be paid according to an OFO/EEOC or court decision

or settlement. For payment, the attorney must provide the agency with

documentation of the hours worked, the hourly rate and the work performed

within 30 days of her receipt of the [agency] decision. These fees

will be submitted to NFC for payment within 30 days after receipt of

the attorney's request for fees and costs.

By letter dated February 23, 1998 complainant submitted a brief (with

evidence attached) to the agency requesting compensatory damages under

the settlement agreement. In the letter complainant requested $75,000.00

for non-pecuniary compensatory damages and argued the following:

Beginning in 1993, [complainant] began to experience physical and

emotional symptoms related to stress caused by the on-going harassment

by a female co-worker, [Coworker A]. Although [complainant] reported

the harassment to management, her complaints were trivialized as being

"an Asian woman thing". In 1995, [complainant] learned that threats on

her life . . . had been made by [Coworker A]. [Coworker A's] history of

erratic, threatening and bizarre behavior toward [complainant] caused

her to experience an intense fear that she would be another victim

of workplace violence, similar to the horrific massacre at the 101

California building. Due to this overwhelming fear, [complainant] was

unable to return to her workplace and began working at home, part-time,

with the permission of her supervisor, [Supervisor A].

In mid-1996, her new supervisor, [Supervisor B], notified her that she

would no longer be allowed to work at home. . . . Although her treating

physician informed the Agency that [complainant] was totally disabled

from working at her usual job site and recommended that her home office

offered the psychological protection she needed to be able to perform

her job duties, [Supervisor B] continued to refuse to allow [complainant]

this option.

The agency's refusal to permit [complainant] to continue to work full

time or part time from her home caused her existing medical conditions

to worsen and led to her total disability from working at all, whether

at home, alternative workplace or at her usual office. Her total

disablement caused her severe emotional distress because she wanted to

continue working and continue her long term career.

. . . .

Based on the statements of [complainant] and those persons who worked with

her and her family members who saw her daily, the loss of her career had a

devastating emotional/psychological impact on [complainant]. [Complainant]

became reclusive when attending social functions and more often than

not declined social invitations. She became inhibited around her own

family members. She continues to be adversely effected by the agency's

refusal to allow her to continue to work at home because she can no

longer continue her career in any manner.

[Complainant's] doctors confirm she suffers from Post-Traumatic Stress

Disorder which manifested itself in all of the following symptoms:

an inability to focus or concentrate, eating and sleep disturbances,

frequent tearfulness, irritability, fearfulness, phobic concerns and

a lack of motivation. [Complainant] was placed on a large dose of

anti-depressant medication as a result of her condition.

Complainant submitted to the agency the following documentation in

support of her February 23, 1998 request for compensatory damages: (1)

statement from complainant; (2) statement from complainant's husband;

(3) statement from complainant's sister; (4) letter dated February 5,

1998 from Psychiatrist A; (5) summary of complainant's employment history;

(6) letter dated March 27, 1996 from Physician A (with enclosures); (7)

letter dated March 28, 1996 from Psychologist A; (8) letter dated April 3,

1996 from Physician B; (9) letter dated July 16, 1996 from Psychiatrist A;

(10) letter dated October 26, 1996 from Psychiatrist A; (11) letter dated

December 16, 1996 from Psychologist A (with attachments); and (12) OWCP

Form (Work Capacity Evaluation; Psychiatric/Psychological Conditions)

dated February 6, 1998.

On March 25, 1998 the agency issued a decision concerning complainant's

request for compensatory damages. The agency found that there should

no award of non-pecuniary compensatory damages. The agency found

that complainant did not show that her present condition was caused

by the alleged discrimination. Regarding the issue of attorney's

fees for work performed during the compensatory damage decision

process, the agency found: "Since I have determined that there is to

be no award of non-pecuniary compensatory damages, there should be no

award of attorney's fees for the representation during this process."

Complainant subsequently filed the instant appeal from the agency's

March 25, 1998 decision.

ANALYSIS AND FINDINGS

The regulation set forth at 64 Fed. Reg 37,644, 37,660 (1999) (to be

codified as and hereinafter cited as 29 C.F.R. � 1614.504(a)) provides

that any settlement agreement knowingly and voluntarily agreed to by the

parties shall be binding on both parties. If the complainant believes

that the agency has failed to comply with the terms of a settlement

agreement, then the complainant shall notify the EEO Director of the

alleged noncompliance "within 30 days of when the complainant knew or

should have known of the alleged noncompliance." 29 C.F.R. � 1614.504(a).

The complainant may request that the terms of the settlement agreement

be specifically implemented or request that the complaint be reinstated

for further processing from the point processing ceased. Id.

Settlement agreements are contracts between the appellant and the agency

and it is the intent of the parties as expressed in the contract, and not

some unexpressed intention, that controls the contract's construction.

Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795

(Aug. 23, 1990); In re Chicago & E.I. Ry. Co., 94 F.2d 296 (7th

Cir. 1938). In reviewing settlement agreements to determine if there is

a breach, the Commission is often required to ascertain the intent of the

parties and will generally rely on the plain meaning rule. Wong v. United

States Postal Service, EEOC Request No. 05931097 (Apr. 29, 1994) (citing

Hyon v. United States Postal Service, EEOC Request No. 05910787 (Dec. 2,

1991)). This rule states that if the writing appears to be plain and

unambiguous on its face, then its meaning must be determined from the

four corners of the instrument without any resort to extrinsic evidence

of any nature. Id. (citing Montgomery Elevator v. Building Engineering

Service, 730 F.2d 377 (5th Cir. 1984)).

A. Non-pecuniary Compensatory Damages

1. Legal Standards for an Award of Compensatory Damages

Section 102(a) of the Civil Rights Act of 1991 (CRA 1991), 105 Stat. 1071,

Pub. L. No. 102-166, codified at 42 U.S.C. � 1981a, authorizes an award of

compensatory damages as part of the "make whole" relief for intentional

discrimination in violation of Title VII of the Civil Rights Act of

1964, as amended. Section 1981a(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

each complaining party for future pecuniary losses, emotional pain,

suffering, inconvenience, mental anguish, loss of enjoyment of life,

and other non-pecuniary losses, according to the number of individuals

employed by the respondent employer. The limit for an employer with

more than 500 employees, such as the instant agency, is $300,000.

42 U.S.C. � 1981(b)(3)(D).

The Commission has held that compensatory damages are recoverable in

the administrative process. Jackson v. United States Postal Service,

EEOC Appeal No. 01923399 (Nov. 12, 1992), req. to reopen den., EEOC

Request No. 05930306 (Feb. 1, 1993). Regarding complainant's claim of

age discrimination, however, we find that compensatory damages are not

awardable for claims arising under the Age Discrimination in Employment

Act (ADEA) of 1967. Falks v. Department of the Treasury, EEOC Request

No. 05960250 (Sept. 5, 1996) (citations omitted). To receive an award

of compensatory damages, a complainant must demonstrate that she 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. Leperi v. Department of Agriculture, EEOC Appeal

No. 01964107 (Apr. 2, 1998) (citing Rivera v. Department of the Navy,

EEOC Appeal No. 01934157 (July 22, 1994), req. for reconsideration den.,

EEOC Request No. 05940927 (Dec. 8, 1995); Compensatory and Punitive

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

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

Compensatory damages may be awarded for past pecuniary losses,<2>

future pecuniary losses, and non-pecuniary losses which are directly or

proximately caused by the agency's discriminatory conduct. EEOC Notice

No. N 915.002 at 8. Pecuniary losses are out-of-pocket expenses incurred

as a result of the employer's unlawful action, including job-hunting

expenses, moving expenses, medical expenses, psychiatric expenses,

physical therapy expenses, and other quantifiable out-of-pocket expenses.

Id. Past pecuniary losses are the pecuniary losses that are incurred

prior to the resolution of a complaint via a finding of discrimination

or a voluntary settlement. Id. at 8-9. Future pecuniary losses are

out-of-pocket expenses that are likely to occur after resolution of

a complaint. Id. at 9. Non-pecuniary losses are losses that are not

subject to precise quantification, including emotional pain, suffering,

inconvenience, mental anguish, loss of enjoyment of life, injury to

professional standing, injury to character and reputation, injury to

credit standing, and loss of health. Id. at 10.

A compensatory damages award should fully compensate a complainant for

the harm caused by the agency's discriminatory action even if the harm

is intangible. Id. at 13. Thus, a compensatory damages award should

reimburse a complainant for proven pecuniary losses, future pecuniary

losses, and non-pecuniary losses. Smith v. Department of Defense,

EEOC Appeal No. 01943844 (May 9, 1996). A complainant has a duty to

mitigate her pecuniary damages. EEOC Notice No. N 915.002 at 9. If a

respondent can prove that a complainant failed to mitigate pecuniary

damages, then the damages award should be reduced to reflect all losses

that could have been avoided with reasonable diligence. Id. at 9-10.

There are no precise formulae for determining the amount of damages for

non-pecuniary losses. Smith, EEOC Appeal No. 01943844. Damage awards

for non-pecuniary losses that have been assessed by juries and courts

have varied significantly. EEOC Notice No. N 915.002 at 13. An award

of compensatory damages for non-pecuniary losses, including emotional

harm, should reflect the extent to which the respondent's discriminatory

action directly caused the harm and the extent to which other factors

also caused the harm. Id. at 11-12. An award of compensatory damages

for non-pecuniary losses should also reflect the nature and severity of

the harm and the duration or expected duration of the harm. Id. at 14.

Compensatory damages may be awarded for all pecuniary and non-pecuniary

losses post-dating the November 21, 1991 effective date of CRA 1991.

See Landgraf v. USI Film Products, 511 U.S. 244 (1994). In Carle

v. Department of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993),

the Commission described the type of objective evidence that an agency

may obtain when assessing the merits of a complainant's request for

emotional distress damages:

[E]vidence should have taken the form of a statement by [complainant]

describing her emotional distress, and statements from witnesses, both

on and off the job, describing the distress. To properly explain the

emotional distress, such statements should include detailed information

on physical or behavioral manifestations of the distress, information on

the duration of the distress, and examples of how the distress affected

[complainant] day to day, both on and off the job. In addition, the

agency should have asked [complainant] to provide objective and other

evidence linking . . . the distress to the unlawful discrimination. . . .

Objective evidence may include statements from the complainant

concerning his emotional pain or suffering, inconvenience, mental

anguish, loss of enjoyment of life, injury to professional standing,

injury to character or reputation, injury to credit standing, loss

of health, and any other non-pecuniary losses that are incurred as a

result of the discriminatory conduct. Smith, EEOC Appeal No. 01943844.

Statements from others, including family members, friends, and health

care providers could address the outward manifestations or physical

consequences of emotional distress, including sleeplessness, anxiety,

stress, depression, marital strain, humiliation, loss of self-esteem,

excessive fatigue, or a nervous breakdown. Id.

2. Causation

In her affidavit complainant claimed that because of the discrimination

she changed "immensely" in the following ways:

[M]ore regrets are made when invited to parties, not as verbal and

open around family, decrease visits with family members. Unable to

sit still and concentrate on any one thing for a long period. I am not

capable of performing the duties of my job as I have done in the past.

I have lost my pride and reputation and los[t] any trust in management.

I will sleep several hours and wake up several time[s] during the late

evening and early morning. I find myself reclusive, fridge and chooses

not to attend social and/or family functions. I am very paranoid;

suspicious and fearful of people around me, looking over my shoulder

constantly, and thinking someone is following or watching me. . . .

I am severely depressed and have significant difficulty in concentrating,

sleeping, anxiety, fearfulness, irritability, lack of motivation, and

a generalized sense of hopelessness.

Statements from complainant's husband and sister corroborate the

statement's made by complainant. Complainant's husband also notes

that because of the agency's actions complainant suffers from chest and

shoulder pains, weight and hair loss, and is impatient with their child.

In a letter dated February 5, 1998, Psychiatrist A stated:

I first began seeing [complainant] in psychiatric treatment in June of

1996 because of signs and symptoms of severe anxiety and depression.

Apparently, the onset of these psychological conditions and their

accompanying symptoms were caused by the ongoing harassment of

[complainant] by another female [agency] employee . . .

At the time of her initial visits to me, [complainant] was experiencing

difficulty in concentrating, eating and sleep disturbances, emotional

lability, frequent tearfulness, generalized irritability, fearfulness,

and some phobic concerns[.] In addition she was extremely fearful

of returning to her place of employment because of concerns that the

resigned employee who had continuously harassed her would appear and

physically attack her or even kill her[.] . . .

I saw [complainant] on a nearly weekly basis until mid-1997 when

the frequency of her visits was reduced to every second or third week

because of a decrease in her symptoms. She also had been started by me

on antidepressant medication with a gradual increase in the dosage to

the current high level which had continued to need up to the present

time. In addition she has episodically required the prescribing of a

tranquilizer to help her deal with the anxiety she was experiencing.

. . . .

[I]t is my professional opinion that an alternative work site was not

appropriate for [complainant] and was not a reasonable accommodation

for her in the Summer of 1996 or at any time thereafter for reasons as

stated above. As a result of her traumatic experiences, [complainant]

had become extremely frightened and even phobic regarding working anywhere

but at home which was the one location where she felt safe from potential

attack by her former coworker.

In my professional opinion the Agency significantly exacerbated

[complainant's] condition by continuing to refuse to let her work at home,

even on a part time basis.

In spite of receiving ongoing psychotherapy combined with antidepressant

medication and tranquilizers, she became increasingly fearful, nervous,

and depressed, feeling hat her future employment situation was hopeless.

She was frequently tearful, became constantly irritable, slept poorly,

lost her appetite and general motivation, could not concentrate

sufficiently even to read magazines or newspapers, and experienced

temporary skin rashes and hair loss related to the tension she was

experiencing.

. . . .

[L]ate in the course of her treatment she became increasingly depressed

and despairing, requiring an increase in the frequency of her visits.

She described feeling betrayed and trapped by the Agency's continuing

refusal to let her work at home.

In my opinion, it is clear that the worsening of both her depression

and her symptoms could have been prevented had the Agency accommodated

[complainant] by allowing her to continue working at home.

By letter dated March 27, 1996 Physician A stated:

[Complainant] has been may patient since June of 1995. . . .

At this point I do believe that [complainant] is significantly

incapacitated by depression and anxiety. I believe that this incapacity

is directly related to circumstances surrounding her work environment

. . .

Notes from Physician A from examinations on January 16, 1996 and

February 27, 1996, state that complainant had an anxiety related skin

rash, phobias, and that complainant reported hair loss and chest pains.

Physician A stated that the chest pains occur with emotional stress and

are not associated with any other kinds of symptoms.

By letter dated March 28, 1996 Psychologist A diagnosed complainant with

Post Traumatic Stress Disorder and stated that this condition was caused

by complainant's contact with an employee at the agency who threatened

complainant's life. By letter dated December 16, 1996 Psychologist

A stated that he has seen complainant for individual psychotherapy

since February 26, 1996 (on an alternate week basis) complainant and

that complainant has a "Major Depression . . . having significant

difficulties sleeping, decreased appetite, anxiety, fearfulness when

leaving her home, lack of motivation, poor concentration, as well as

several specific physical manifestations of distress." Psychologist A

found that complainant's anxiety and distress were due to the threats

from another employee at the agency and "in large part also due to the

lack of adequate response from her superiors at the" agency.

The agency found that the evidence submitted by complainant was

insufficient to link the alleged discrimination to complainant's

non-pecuniary harm. The Commission disagrees with the agency and we

find that much of the evidence of the non-pecuniary damages submitted by

complainant, including statements from complainant, complainant's husband,

complainant's sister, Psychiatrist A, Physician A, and Psychologist A,

specifically and persuasively link the non-pecuniary harm to the alleged

discrimination at issue. On appeal the agency cites a statement from

the Regional Engineer in which, as the agency states, "he suggested

some other possibilities" for complainant's stated fear of working in

the office. The Commission finds the Regional Engineer's statements

referring, for example, to "a son [of complainant's] who is hyper,"

are highly speculative and insufficient to break the causal link between

the incidents in the complaint and the non-pecuniary harm.

The Commission notes, however, that as with pecuniary damages, the

agency is liable only for those damages directly or proximately caused

by the intentional discrimination. Smith, EEOC Appeal No. 01943844

(citing EEOC Notice No. N 915.002 at 11). Thus, because a portion of

the non-pecuniary damages was caused by the actions of the employee who

threatened complainant - actions which are not directly at issue in the

complaint - damages stemming from these actions can not be included in

the instant award.

Calculation of Damages

Viewing the record as a whole the Commission finds that complainant

incurred non-pecuniary losses in the form anxiety and related symptoms

as a result of the discrimination at issue in the instant matter.

The statements provided by complainant, her husband, her sister, and

her health care providers, are the type of evidence envisioned in Carle

which can be used to support a claim of non-pecuniary losses. See Carle,

EEOC Appeal No. 01922369.

The Commission has held that there are no "hard and fast" rules governing

the amount of non-pecuniary damages to be awarded. Robison-Matheson

v. Social Security Admin., EEOC Appeal No. 01961574 (Oct. 23, 1998).

The Commission has explained, however, that "non-pecuniary damages must be

limited to the sums necessary to compensate the injured party for actual

harm, even where the harm is intangible and should take into account

the severity of the harm and the length of time that the injured party

has suffered from the harm." Smith, EEOC Appeal No. 01943844 (citations

omitted). 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. Id. (citing Cygnar v. City of Chicago,

865 F.2d 827, 848 (7th Cir. 1989); EEOC V. AIC Security Investigations,

Ltd., 823 F. Supp. 571, 574 (N.D. Ill. 1993)).

The Commission has awarded non-pecuniary compensatory damages in several

cases somewhat similar to complainant's case. Burrough, Grayson, Neeland,

Sands v. Department of Defense, EEOC Appeal Nos. 01955462, 01955351,

01955691, and 01955520 (Feb. 27, 1998) ($10,000 in non-pecuniary and

future pecuniary damages for each complainant for emotional distress

when complainants' were not reassigned (others who were reassigned

ultimately received an increase in pay and promotional opportunities);

two complainants diagnosed with Major Depression; one complainant's

claim of sleeping disorder, lack of interest in usual activities,

crying spells, weight gain, difficulty socializing, sense of isolation,

tearfulness, irritability, apathy, and sadness, was supported by treating

psychiatrists); Young v. Social Security Admin., EEOC Appeal No. 01955120

(Jan. 30, 1998) ($5,000.00 in non-pecuniary damages for migraines,

emotional distress, humiliation, embarrassment caused by nonselections);

Bever v. Department of Agriculture, EEOC Appeal No. 01953949 (Oct. 31,

1996) ($15,000 in non-pecuniary damages for situational anxiety, as shown

by medical evidence, when complainant was not promoted; complainant stated

she no longer went to friends' celebrations, the movies, out to dinner,

or worked on her hobby).

The Commission finds that some of the claimed non-pecuniary damages in the

instant matter purportedly resulted from the 1993 actions of the coworker

who allegedly harassed complainant. These incidents are not at issue

in this decision except to the extent that the agency's reaction to and

handling of these incidents are part of the complaint. The Commission

rejects the agency's complete denial of non-pecuniary damages because the

Commission finds that complainant has established a causal connection

between a portion of the damages and the discrimination at issue.

After considering the nature and severity of the harm to complainant,

the actual duration of the harm, and limiting the award to those damages

caused by the discrimination in the complaint, we find that complainant is

entitled to an award of non-pecuniary damages in the amount of $10,000.00.

The Commission finds that such an award is consistent with other awards

as cited supra, is not "monstrously excessive" standing alone, and is

not the product of passion or prejudice.

The Commission finds that the agency has breached the settlement agreement

by failing to pay complainant $10,000.00 in compensatory damages.

The Commission shall remand the matter for payment to complainant of

$10,000.00 in compensatory damages.

B. Attorney's Fees

Provision E of Attachment 1 of the settlement agreement required that the

agency pay attorney's fees (not to exceed $4,000.00) for representation

provided during the compensatory damages process. The agency has denied

payment of attorney's fees under this provision to complainant. Thus,

the agency has breached provision E of the agreement. The Commission

shall remand the matter for payment of attorney's fees as specified in

provision E of Attachment 1 of the settlement agreement.

CONCLUSION

The agency's decision effectively finding no breach of the settlement

agreement is REVERSED and we REMAND the matter so that the agency may

specifically comply with the settlement agreement as set forth in the

Order herein.

ORDER

Within 30 days of the date this decision becomes final the agency shall:

Pay complainant $10,000.00 in compensatory damages.

Pay attorney's fees in compliance with provision E of Attachment 1 of

the settlement agreement.

Issue a decision showing that it has complied with provision E of

Attachment 1 of the settlement agreement.

Pay attorney's fees, if appropriate, as specified in the Attorney's Fees

order herein.

Proof of payment for compensatory damages and attorney's fees and a copy

of the new decision showing compliance with provision E of Attachment

1 of the settlement agreement must be sent to the Compliance Officer as

referenced herein.

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 (M1199)

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). All requests and arguments must be

submitted to the Director, Office of Federal Operations, Equal Employment

Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. In the

absence of a legible postmark, the request to reconsider shall be deemed

timely filed if it is received by mail within five days of the expiration

of the applicable filing period. See 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. �1614.604).

The request or opposition must also include proof of service on the

other party.

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

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. Any supporting documentation

must be submitted with your request for reconsideration. The Commission

will consider requests for reconsideration filed after the deadline only

in very limited circumstances. See 29 C.F.R. �1614.604(c).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R1199)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court WITHIN NINETY (90) CALENDAR DAYS from the date

that you receive this decision. In the alternative, you may file a

civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. If you file a civil action, YOU MUST NAME AS THE DEFENDANT IN

THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD OR DEPARTMENT

HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND OFFICIAL TITLE.

Failure to do so may result in the dismissal of your case in court.

"Agency" or "department" means the national organization, and not the

local office, facility or department in which you work. Filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1199)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court appoint

an attorney to represent you and that the Court permit you to file the

action without payment of fees, costs, or other security. See Title VII

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

the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).

The grant or denial of the request is within the sole discretion of

the Court. Filing a request for an attorney does not extend your time

in which to file a civil action. Both the request and the civil action

must be filed within the time limits as stated in the paragraph above

("Right to File A Civil Action").

FOR THE COMMISSION:

March 8, 2000

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_____________________ _________________________

Date

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.

2Section 1981a does not cap or otherwise limit damage awards for past

pecuniary losses. EEOC Notice No. N 915.002 at 8.