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.