01970533
10-28-1999
Monique Harrison, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Monique Harrison v. United States Postal Service
01970533
October 28, 1999
Monique Harrison, )
Appellant, )
)
v. ) Appeal No. 01970533
) Agency No. 1A-1006-92
William J. Henderson, ) Hearing No. 160-95-8526X
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
On October 22, 1996, the appellant, by and through her attorney,
filed an appeal from a final decision of the agency dated September 30,
1996, concerning her complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. �2000e et seq. The appeal is timely (see 29 C.F.R. �1614.402(b))
and is accepted in accordance with 29 C.F.R. �1614.401.
ISSUE PRESENTED
Whether the agency discriminated against the appellant on the bases of
her sex (gender and sexual harassment) and reprisal (EEO activity) when
it issued her a notice of seven day suspension effective October 1,
1991 through October 7, 1991.
BACKGROUND
The appellant worked as a flat sorter machine operator in the agency's
Morgan General Mail Facility (GMF) in New York, New York. She filed an
EEO complaint which has been defined as comprising the above issue.
Following an investigation, the agency notified the appellant of her
right to request a hearing before an Equal Employment Opportunity
Commission Administrative Judge (AJ), and the appellant did not do so.
Thereafter, the agency issued a final decision finding no discrimination.
The appellant filed an appeal with this Commission. On appeal, the
Commission affirmed the final agency decision.<1> The appellant filed a
request for reconsideration of the appeal decision, which the Commission
granted.<2> It ordered the agency to conduct a supplemental investigation
on the merits of the suspension allegation, and to provide the appellant
an opportunity to seek EEO counseling and file an EEO complaint on any
other past allegations of sexual harassment related to one of her former
supervisors.
On remand, the agency gave the appellant the opportunity to seek
additional EEO counseling, as ordered, and the appellant indicated that
she did not wish such additional counseling. The agency conducted a
supplemental investigation on the suspension allegation and provided the
appellant the right to request a hearing before an AJ, which she did.
The appellant was represented by counsel at the hearing. In opening
the hearing, the AJ stated that he and the parties went over the issue
to be heard, which was the one set forth above. The AJ asked if there
were objections to any rulings, and there were none. The appellant also
confirmed at the hearing that her January 1992 complaint was filed based
on the suspension. (Hearing transcript, HT 84).
Following the hearing, the AJ found that the appellant was discriminated
against on the bases of sex (sexual harassment) and reprisal (EEO
activity) when she was given the seven day suspension. As relief, the
AJ recommended that the agency provide back pay, if it had not already
done so, train management regarding sexual harassment in the workplace,
post a notice on bulletin boards that discrimination had been found, and
award attorney fees. Thereafter, the agency issued a final decision
rejecting the AJ's recommendations and finding no discrimination.
The appellant then filed the instant appeal.
The appellant, who worked for the agency as a flat sorter machine
operator clerk, was suspended under charges of failure to follow
instructions, using dilatory tactics, and improperly performing her
duties on May 18, 1991. With regard to the sexual harassment and the
reprisal determination, the AJ found, in salient part, that the immediate
supervisor (Supervisor 1) who requested the appellant be disciplined
had, prior to May 18, 1991, repeatedly stared at the appellant and
asked her out on dates, and was rebuffed. This included a request for
a date in 1991 after it was known the appellant was married. (HT 27).
On May 18, 1991, the appellant was sitting on the last seat of a mail
sorting console. The AJ found that on that day, Supervisor 1 placed his
leg on the machine console within two inches of the appellant's back,
breathing heavily and moving back and forth in a sexual motion, staring
at her chest. The AJ found that the appellant asked Supervisor 1 to
move his leg, but he refused, whereupon the appellant told Supervisor
1 that she was going to complain about the matter to EEO.
In making these findings, the AJ relied in part on the testimony of the
appellant, which he found was credible. The AJ found that the testimony
of Supervisor 1, who denied engaging in the above acts, to be lacking
in candor and evasive.
The AJ recited the appellant's testimony that immediately after the
incident, she complained to three people in management and stated she
did not want to work with Supervisor 1. The appellant and Supervisor
1 were not separated from each other.
On May 18, 1991 Supervisor 1 submitted a written request that the
appellant be removed. (First Report of Investigation, Exh. 4).
The agency's Labor Relations Department decided to reduce the request
to a suspension. Supervisor 1 then issued the suspension, with the
concurrence of another management official.
The AJ found that the appellant was not suspended for the reasons
charged, but in reprisal for EEO activity and because she refused to
accept Supervisor 1's advances (sexual harassment discrimination).
On appeal, the appellant argues that the AJ's findings of sexual
harassment and reprisal are supported by the record. She also argues
that she is entitled to back pay, front pay, "equitable relief" for
out-of-pocket expenses for visits with her doctor, travel, telephone
calls and postage resulting from the discrimination, compensatory damages,
and attorney fees.
In response to the appellant's appeal, the agency argues that the AJ's
findings were not supported by the record.
ANALYSIS AND FINDINGS
Sexual Harassment
An employer is always liable for harassment by a supervisor on a
prohibited basis that culminates in a tangible employment action. The
Supreme Court recognized that this result is appropriate because an
employer acts through its supervisors, and a supervisor's undertaking
of a tangible employment action constitutes an act of the employer.
Burlington Industries, Inc. v. Ellerth, ___U.S.___, 118 S.Ct 2257, 2269
(1998); EEOC Compliance Manual, Volume II, �615, Enforcement Guidance:
Vicarious Employer Liability for Unlawful Harassment by Supervisors
(June 18, 1999).
For purposes of establishing vicarious liability in employment
discrimination cases, an individual qualifies as an employee's
supervisor if: (1) the individual has authority to undertake or
recommend tangible employment decisions affecting the employee, or
(2) the individual has authority to direct the employee's daily work
activities. Enforcement Guidance: Vicarious Employer Liability for
Unlawful Harassment by Supervisors. Tangible employment actions are the
means by which the supervisor brings the official power of the enterprise
to bear on subordinates. An example of a tangible employment action is
a suspension. Id. at footnote 31.
Supervisor 1 falls within the definition of the appellant's supervisor in
that he requested the appellant be removed and issued her the reduced
action of a suspension. The suspension was a tangible employment
action.
The agency takes issue with many of the AJ's factual findings. Below are
some examples. It argues that the AJ cited HT 30 to support his finding
that Supervisor 1 asked the appellant for a date even after she was
married, and there was no reference to dates on that page. However,
the appellant testified to this at HT 27.
The agency argues that while the AJ cited the statements of three
eyewitnesses as corroborating the appellant's version of events of
Supervisor 1's activity around the flat sorter machine on May 18, 1991,
their statements did not support that Supervisor 1 did anything with
sexual overtones. One witness, a managerial employee, stated that
she witnessed Supervisor 1 prop his leg on the sorting machine which
placed him a few inches from the appellant's back, that the appellant
repeatedly and forcefully asked Supervisor 1 to move, and he refused.
Another witness, a clerk, stated that she witnessed Supervisor 1 place his
leg on the sorting machine, that he was three feet from the appellant,
that the appellant repeatedly asked Supervisor 1 to move his leg and
he did not do so. Another clerk gave a similar account, but indicated
the leg was about 12 inches from the appellant's back. Nevertheless,
these witnesses placed Supervisor 1 in a proximity and position which
made the appellant uncomfortable, and corroborated the account that the
appellant asked Supervisor 1 to move. They take on added significance
in light of Supervisor 1's statement that he never placed himself in
a proximity to the appellant that it became necessary for her to ask
him to move, and his denial at one point in the hearing that he placed
his leg near the appellant. The AJ acted within his discretion when he
found these statements corroborated the appellant's version of events.
The agency also argues that early after the incident, the appellant
made no reference to sexual harassment, suggesting this undermines her
credibility. However, notes by General Supervisor L.K. reflect that one
day after the incident in a meeting that included himself and Supervisor
E.T., the appellant said that she was harassed by Supervisor 1, implied
that he expressed an unwelcome interest in her, and complained about his
"position" and "stance" while supervising at the sorting machine. This
fairly could be viewed as referring to sexual harassment. The General
Supervisor's notes state Supervisor 1 made his position clear to him,
and it appears that the General Supervisor was misled by Supervisor 1.
The AJ noted the appellant testified that she reported the May 18,
1991 incident to one other supervisor. The record reflects that the
appellant's report to Acting General Supervisor W.J. did not intelligibly
raise a sexual component. (First investigative file, Exh. 7; second
investigative file, affidavit E; HT 39).
Finally, the agency argues that the AJ expressed bias against the
agency's case during the hearing, but this is not supported by the record.
The AJ's finding of sexual harassment is supported by the record.
Reprisal Discrimination
Recounting the incident of May 18, 1991, the appellant testified that when
she told Supervisor 1 to move his leg and he did not do so, the appellant
told him "I'm taking you to EEO." The AJ credited this statement.
On the same day, Supervisor 1 recommended that the appellant be removed.
The appellant's statement constituted EEO opposition activity. Manoharan
v. Columbia University College of Physicians & Surgeons, 842 F.2d 590,
594 (2nd Cir. 1988). We find the record supports the AJ's recommended
decision finding that the appellant was also discriminated against on
the basis of reprisal when she was suspended.
Remedies
Back pay
The union filed a grievance on the appellant's behalf regarding the
suspension, and in a Step 3 decision in April 1992 the agency modified
the suspension to a letter of warning and awarded her back pay for the
period of the suspension.
On appeal, the appellant contends that she never actually received
the back pay. However, she previously testified that she received
back pay for the period she was suspended. (HT 79). Moreover, the
agency submitted a memorandum by its finance manager indicating that
in the 13th pay period of 1992 the appellant was paid for 40 hours of
back pay for the period she was suspended. This was corroborated by
payroll journal records. The net back pay was $617.95. We find that
the agency has established that it paid the above amount of back pay.
It did not pay interest on back pay.
The appellant also argued that she was entitled to all lost overtime,
shift differential, benefits and interest on back pay that she would
have received but for the suspension. Where discrimination is found,
the injured party is to be placed, as near as may be, in the situation she
would have occupied if the wrong had not been committed. Albemarle Paper
Company v. Moody, 422 U.S. 405, 418-19 (1975). The appellant is entitled
to the amount of pay she would have earned had she worked during the
week of the suspension, including accumulations of annual leave, and
interest on back pay. Accordingly, on remand, to the extent the agency
did not include such amounts in its back pay calculations and provide
such benefits, the agency shall do so, and pay appropriate interest up
to the time of payment.
Front pay
The appellant stopped working on April 24, 1992 and never returned.
She applied for disability retirement in May 1993. It was approved in
October 1993. She contends that she was constructively discharged. The
appellant argues that she is unable to work due to the discrimination, and
hence, is entitled to front pay. Pursuant to her disability retirement
application, the appellant submitted a letter by a psychiatrist stating
the appellant was unable to work at all, and could not work in any
regulated, structured environment.
As an initial matter, the scope of the appellant's complaint does not
include constructive discharge. Further, the incident which gave rise
to the suspension occurred in May 1991, and the appellant was suspended
in October 1991. The appellant has not established a nexus between the
discriminatory suspension, the issue in the instant complaint, and her
work stoppage commencing in April 1992. Accordingly, we find that the
appellant is not entitled to front pay.
Compensatory damages
The appellant seeks compensatory damages which were authorized under
�102(a) of the Civil Rights Act of 1991, 42 U.S.C. �1981a. Because the
compensatory damages provision of the Act is not retroactive, they are
not available for pre-Act conduct, i.e., acts of discrimination prior to
November 21, 1991. Landgraf v. USI Film Products, 511 U.S. 244 (1994);
Laverdure v. Department of the Interior, EEOC Request No. 05931186
(June 16, 1994).
The appellant argues that the agency's withholding of back pay past the
effective date of the Act makes her eligible for compensatory damages.
The discriminatory conduct, however, was the suspension. The back pay
goes to remedy.
The medical expenses the appellant requests constitute compensatory
damages, and hence are not recoverable against the agency.
Mootness
On appeal, and previously in a motion to the AJ, the agency argued that
the appellant's complaint was moot. To this end, it stated that the
notice of suspension letter was issued to the appellant on September 21,
1991, that her last day at work was in April 1992, and she retired on
disability in October 1993. The agency averred that under Article 16,
�10 of the collective bargaining agreement, the suspension letter which
the appellant received on September 21, 1991 could not be considered in
any subsequent disciplinary action if there had been no disciplinary
action initiated against her for a period of two years. This article
also provides that upon an employee's written request, any disciplinary
notice or decision letter will be removed from the employee's official
personnel file (OPF) after two years if there has been no disciplinary
action initiated against the employee in that two-year period. In its
final decision, the agency averred that the letter of warning "passed
out of existence after two years."
The agency further notes that pursuant to an April 1992 grievance
decision, the suspension was modified to a letter of warning and and
the appellant was awarded and paid back pay.
Citing Gamble v. Department of Veterans Affairs, EEOC Appeal No. 01911855
(July 26, 1991), the AJ found that even though the appellant no longer
worked for the agency and may have been paid back pay, her complaint
was not moot.
The agency did not state that the reduced discipline of a letter of
warning had been expunged from the appellant's OPF, and there is no
evidence this occurred. This is adverse to the appellant's employment
record and constitutes a harm. Further, the appellant is entitled to
interest on back pay, which the agency did not pay. Accordingly, we
find that the appellant's complaint is not moot.
Attorney fees
Prior to the appeal, the agency argued that because the appellant's
EEO complaint and her attorneys' representation were not a catalyst
in her obtaining relief, she was not a prevailing party, and hence,
was not entitled to attorney fees. With regard to this, the agency
stated that the appellant's first attorney did not make an appearance
until September 21, 1993, and her second attorney made her appearance
on January 6, 1995.<3>
The agency explained that the suspension was modified to a letter of
warning with back pay in the Step 3 grievance decision in April 1992.
The appellant was not represented by an attorney in the grievance process.
The agency also argued that by the time the appellant's attorneys made
their appearances, her complaint was moot.
We find that the appellant is a prevailing party who is entitled to
attorney fees. As an initial matter, the agency does not state that the
documentation related to the suspension and its modification to a letter
of warning have been removed from the appellant's OPF, and there is no
evidence of actual removal. This is a black mark on the appellant's OPF.
Second, the appellant has not been paid interest on back pay.
The appellant's attorneys are entitled to costs. Also, reasonable
costs incurred by the prevailing complainant herself in the course of
litigating her own EEO claim are compensable. Fiene v. United States
Postal Service, EEOC Petition No. 04920009 (September 3, 1992). These may
include such items as mileage, postage, telephone calls, photocopying, and
any other reasonable expenses incurred in connection with the complaint.
Id.; Carver v. United States Postal Service, EEOC Petition No. 04950004
(June 19, 1996). The costs incurred by the appellant's attorneys and
the appellant herself should be supported with the best documentation
available, and be included in the application for attorney fees filed
with the agency. Instructions regarding the application are below.
CONCLUSION
Based upon a review of the record, and for the foregoing reasons, it is
the decision of the Commission to REVERSE the final agency decision which
found that the appellant was not discriminated against on the bases of her
sex and reprisal for EEO activity when she was suspended for seven days in
October 1991. The Commission finds that the appellant was discriminated
against on the bases of sex and reprisal with regard to the suspension.
ORDER
(1) The agency must pay the appellant all lost overtime, shift
differential, and benefits she would have received but for the suspension,
to the extent it has not already done so, as well as interest on back
pay within 120 calendar days of the date it receives this decision.<4>
(2) The agency must physically remove and expunge from the appellant's
OPF all documentation related to her suspension and modification of the
suspension to a letter of warning within 60 calendar days of the date
it receives this decision.
(3) The agency must train Supervisor 1 regarding the meaning of
employment harassment under Title VII, and how to avoid perpetrating
such harassment. It must also train General Manager L.K. and Supervisor
E.T. regarding employment harassment law and policy, with an emphasis
on how to conduct a proper inquiry after receiving a report of sexual
harassment.<5> This training shall be conducted regardless of where
the above individuals work for the agency and their current positions.
The agency must complete the above actions within 150 calendar days of
the date it receives this decision.
The agency is further directed to submit a report of compliance, as
provided below. The report must include supporting documentation of
the agency's calculation of back pay, interest and other benefits due
the appellant, including evidence that the corrective actions ordered
in paragraphs (1), (2), and (3) above have been implemented. The agency
must send a copy of this report to the appellant.
POSTING ORDER
The agency is ORDERED to post at its Morgan General GMF in New York,
New York copies of the attached notice. Copies of the notice, after
being signed by the agency's duly authorized representative, must be
posted by the agency within 30 calendar days of the date this decision
becomes final, and must remain posted for 60 consecutive days, in
conspicuous places, including all places where notices to employees are
customarily posted. The agency must take reasonable steps to ensure that
said notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within 10 calendar days of the expiration of
the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
ATTORNEY'S FEES (H1092)
If appellant has been represented by an attorney (as defined by
29 C.F.R. �1614.501 (e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. �1614.501 (e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. �1614.501.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark,
the request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and any supporting documentation must be submitted with your
request for reconsideration. The Commission will consider requests
for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. �1614.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that you have the right to file
a civil action in an appropriate United States District Court WITHIN
NINETY (90) CALENDAR DAYS from the date that you receive this decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. If you file a civil action,
YOU MUST NAME AS THE DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE
OFFICIAL AGENCY HEAD OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS
OR HER FULL NAME AND OFFICIAL TITLE. Failure to do so may result in
the dismissal of your case in court. "Agency" or "department" means the
national organization, and not the local office, facility or department
in which you work. If you file a request to reconsider and also file a
civil action, filing a civil action will terminate the administrative
processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. ��791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
Oct. 28, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated ________________ which found that
a violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. has occurred at this facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL DISABILITY with respect
to hiring, firing, promotion, compensation, or other terms, conditions
or privileges of employment. The Morgan General Mail Facility (GMF)
in New York, New York reaffirms its commitment to comply with these
statutory provisions.
The Morgan GMF supports and will comply with such Federal law and will
not take action against individuals because they have exercised their
rights under law. The EEOC found that an individual was subjected to
sexual harassment and reprisal for EEO activity in violation of the
Title VII when the individual was issued a seven day suspension
The Morgan GMF is remedying the former employee affected by the
Commission's finding. The ordered remedies include interest on back
pay, removing documentation referring to the discipline from the former
employee's official personnel file, and training specified managers
regarding employment harassment. The Morgan GMF will ensure that
officials responsible for personnel decisions and terms and conditions of
employment will abide by the requirements of all Federal equal employment
opportunity laws.
The Morgan GMF will not in any manner restrain, interfere, coerce,
or retaliate against any individual who exercises his or her right to
oppose practices made unlawful by, or who participates in proceedings
pursuant to, Federal equal employment opportunity law.
_______________________________
Date Posted: ____________________
Posting Expires: ________________
29 C.F.R. Part 1614
1Harrison v. United States Postal Service, EEOC Appeal No. 01933185
(September 2, 1993).
2Harrison v. United States Postal Service, EEOC Request No. 05940025
(November 10, 1994).
3The record does not appear to contain all the correspondence relative
to the appearance of the attorneys. For purposes of analysis, we will
assume, without finding, that the appearance dates provided by the agency
are correct.
4In the 13th pay period of 1992 the agency paid the appellant for 40
hours of back pay for the period she was suspended. The gross back pay
was $678.65.
5These managers are identified in the first investigative file, Exh. 5,
and HT 39.