Sandra J. Hyde, Complainant,v.Eric H. Holder, Jr., Attorney General, Department of Justice, (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity CommissionNov 24, 2009
0120073964 (E.E.O.C. Nov. 24, 2009)

0120073964

11-24-2009

Sandra J. Hyde, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, (Federal Bureau of Prisons), Agency.


Sandra J. Hyde,

Complainant,

v.

Eric H. Holder, Jr.,

Attorney General,

Department of Justice,

(Federal Bureau of Prisons),

Agency.

Appeal No. 0120073964

Agency No. P20000071

DECISION

Complainant timely initiated an appeal from the agency's final decision,

dated August 21, 2007, concerning her claim for damages, which stems from

her original complaint alleging employment discrimination in violation

of Title VII of the Civil Rights Act of 1964 (Title VII), as amended,

42 U.S.C. � 2000e et seq. The appeal is deemed timely and is accepted

pursuant to 29 C.F.R. � 1614.405(a).

BACKGROUND

In the underlying complaint, complainant alleged that she was subjected

to a hostile work environment on the basis of sex. At the conclusion of

the investigation, complainant was provided with a copy of the report

of investigation and notice of her right to request a hearing before

an EEOC Administrative Judge (AJ). When complainant did not request a

hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the

agency issued a final decision (FAD1) pursuant to 29 C.F.R. � 1614.110.

FAD1 found that complainant was subjected to a hostile work environment

on the basis of sex. FAD1 found that from March 2, 1999 to September 10,

1999, complainant was subjected to sexually offensive comments, gestures,

touching, and grabbing by her first-level supervisor (S1) and second-level

supervisor (S2). FAD1 found that the evidence supported complainant's

claims that S2 consistently made comments about performing sexual acts,

made inappropriate references to complainant's body, performed several

sexually suggestive acts in the presence of complainant, and on one

occasion, attempted to push complainant's head to his stomach area.

Further, FAD1 found that the record supported that S1 routinely grabbed

his crotch and made sexually offensive comments to complainant and

other employees. FAD1 found that the sexual harassment occurred nearly

every day for approximately six months. As a result, FAD1 found that

complainant had been subjected to a sexually hostile work environment

and directed complainant to submit a request for compensatory damages

and attorney's fees. When both parties could not come to agreement

on appropriate relief, the agency issued a final agency decision with

respect to compensatory damages (FAD2) on August 21, 2007.

Leave Reinstatement/Reimbursement and Early Retirement

Complainant requested an award of $4,334.83 to cover damages from

taking leave without pay when she was forced to take time off due to

the stress caused by a sexually hostile work environment. Additionally,

complainant requested restoration of 226.95 hours of leave. FAD2 found

that complainant had not submitted any information regarding her use

of leave without pay. FAD2 found that complainant was therefore not

entitled to reimbursement for leave without pay. As to restoration of

sick and annual leave, FAD2 found that complainant submitted handwritten

documents showing her leave taken from 1999-2006. FAD2 found that only

the documents from 2000-2001 identified some leave taken for "stress."

FAD2 found that in light of the lack of specific evidence and that

complainant only worked with the responsible management officials

until 2001, complainant was therefore entitled to restoration of 61.5

hours of sick leave and 8 hours of annual leave. Further, FAD2 denied

complainant's request for early retirement as complainant failed to show

that early retirement would make her whole.

Pecuniary Damages

Complainant requested reimbursement of $2,347 for medical bills associated

with an on-the-job injury when a shelf fell on her. Additionally,

complainant requested $28,190.19 as reimbursement for medical expenses

incurred when she underwent gastric bypass surgery. Complainant claimed

that the agency's harassment caused her to develop an eating disorder

which led to "rapid weight gain." FAD2 found that complainant failed

to show that the sexual harassment complainant suffered was connected

to the on-the-job accident and therefore denied complainant's request

for damages related to the accident. Additionally, FAD2 found that the

evidence submitted by complainant failed to show that complainant suffered

an eating disorder and medically required gastric bypass surgery because

of sexual harassment. FAD2 therefore denied complainant's request for

damages related to her gastric bypass surgery.

Non-pecuniary Damages

As to non-pecuniary damages, complainant requested $300,000 to

compensate her for emotional, physical, and psychological injuries due

to "extreme emotional distress and stress related disorders" caused by

sexual harassment. Complainant claimed that she suffered nightmares,

marital problems, extreme stress, depression, and an eating disorder

that caused excessive and rapid weight gain. FAD2 found that taking

into account awards in comparable cases, the severity and duration of

the harm, and the evidence offered in support of the claim complainant

was entitled to a non-pecuniary damages award of $8,000.

Attorney's Fees and Costs

Complainant requested an award for attorney's fees in the amount

of $8,691.33 and $1,629.08 in costs. As to attorney's fees, FAD2

found that complainant did not submit the proper documentary evidence

supporting her claim for attorney's fees and costs. FAD2 found that many

of complainant's attorney's time entries were vague and included work

performed that was unrelated to complainant's Title VII claim. FAD2 found

that many entries state "phone call" or "long distance telephone call,"

"memo from staff," "staff instructions," "review of grievances," "review

of letters," and "review of emails" without providing any information

as to the subject matter of these entries. Additionally, FAD2 found

that for the time period from December 18, 2006 to March 30, 2007, the

time records provide little information about the subject matter of the

work done by the attorney or his staff. Further FAD2 found that the

time records contained redundant entries where time spent or work done

appears unnecessary. FAD2 then determined that based on the entries

that did provide adequate detail of the subject matter and that appeared

to be related to complainant's EEO matter, complainant was entitled to

an additional $937.95 for work done by her attorney at $125/hour and

$490.80 for work done by his paralegal at $45/hour. Thus, FAD2 added

this $1,933.55 to the $4,258.18 originally offered by the agency and

found that complainant was entitled to $6,191.73 in attorney's fees.

As to costs, FAD2 found that the only documentation supporting

complainant's request for costs was an invoice from a medical facility for

providing copies of complainant's medical records at a cost of $43.13.

As a result, FAD2 awarded complainant $6,191.73 in attorney's fees and

$43.13 in costs.

CONTENTIONS ON APPEAL

On appeal, complainant asserts that the record establishes that there

is sufficient evidence to justify an award of $300,000 in non-pecuniary

damages.1 Complainant maintains that all of the statements regarding

complainant's physical and emotional reactions to the hostile work

environment were unrebutted, yet FAD2 found that there was not

a sufficient "definitive statement" that the harassment caused an

eating disorder. Complainant states that the record supports a causal

connection between the harassment and the need for the surgical procedure

and therefore, all costs related to the procedure should be granted.

Further, complainant maintains that FAD2 misapplied comparative cases

making the final award unjust and insufficient. Finally, as to attorney's

fees and costs, complainant claims that the documentation submitted was

sufficient to show that the work was performed directly on complainant's

case and to do more could breach attorney-client confidentiality.2

In response, the agency states that complainant has not shown a nexus

between the harassment that occurred in 1999 and the July 2003 gastric

bypass surgery. Further, the agency claims that complainant's medical

documentation contradicts her contention that she needed gastric bypass

surgery due to a stress-related eating disorder. The agency maintains

that the record shows that complainant's physical injuries were related

solely to her on-the-job accident and that several of her emotional

injuries were related to her obesity and gastric bypass surgery.

The agency therefore argues that considering the lack of relevant

medical evidence that complainant suffered an eating disorder or that any

medical treatment was linked to the agency's discriminatory harassment,

the award of $8,000 in non-pecuniary damages was appropriate. Finally,

the agency contends that the amount awarded in attorney's fees and costs

was appropriate considering the documentation provided.

ANALYSIS AND FINDINGS

Our task is to resolve this dispute over the appropriate type and amount

of relief due complainant because of the discrimination she suffered at

the hands of the agency. In so doing, we review the propriety of the

remedies awarded pursuant to the relief ordered de novo (or "anew").

See 29 C.F.R. � 1614.405(a). This means that in deciding this case,

we must "examine the record without regard to the factual and legal

determinations" of the agency, "review the documents, statements, and

testimony of record, including any timely and relevant submissions of

the parties," and then issue our decision "based on the Commission's

own assessment of the record and ... interpretation of the law."

Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614

(rev. Nov. 9, 1999) (EEO MD-110), at 9-15. Accordingly, we have carefully

reviewed the entire record before us in our attempt to discern whether

a preponderance of the evidence warrants a modification of the agency's

remedy award. See 29 C.F.R. � 1614.405(a). We conclude that it does.

As to the issue of compensatory damages, we note that in West v. Gibson,

119 S.Ct. 1906 (1999), the Supreme Court held that Congress afforded

the Commission the authority to award compensatory damages in the

administrative process. Section 102(a) of the Civil Rights Act of 1991

(the CRA 1991), codified as 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 to

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 persons

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

more than 500 employees, such as the agency herein, is $300,000.00.

42 U.S.C. � 1981a(b)(3)(D).

If a complainant alleges that she is entitled to compensatory damages

and the agency or Commission enters a finding of discrimination, the

complainant is given an opportunity to submit evidence establishing

her claim. 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. Rivera v. Department of

the Navy, EEOC Appeal No. 01934157 (July 22, 1994), req. for recons. den.,

EEOC Request No. 05940927 (December 11, 1995); Compensatory and Punitive

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

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

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. Non-pecuniary damages constitute

the sums necessary to compensate the injured party for actual harm,

even where the harm is intangible. Carter v. Duncan-Higgins, Ltd.,

727 F.2d 1225 (D.C. Cir. 1984). The award should take into account

the severity and duration of the harm. Carpenter v. Department of

Agriculture, EEOC Appeal No. 01945652 (July 17, 1995). Non-pecuniary

and future pecuniary damages are limited to an amount of $300,000.00.

The Commission notes that for a proper award of non-pecuniary damages,

the amount of the award should not be "monstrously excessive" standing

alone, should not be the product of passion or prejudice, and should be

consistent with the amount awarded in similar cases. See Ward-Jenkins

v. Department of the Interior, EEOC Appeal No. 01961483 (March 4, 1999)

(citing Cygnar v. City of Chicago, 865 F. 2d 827, 848 (7th Cir. 1989)).

Pecuniary Damages

Pecuniary damages may be awarded for losses that are directly or

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

Enforcement Guidance: Compensatory and Punitive Damages Available Under

Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002

at 8 (July 14, 1992) ("Guidance"). Pecuniary losses are out-of-pocket

expenses incurred as a result of the agency's unlawful action, including

job-hunting expenses, moving expenses, psychiatric expenses, physical

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

For claims seeking pecuniary damages, a complaint should proffer objective

evidence documenting out-of-pocket expenses for all actual costs and

an explanation of the expense, i.e., medical and psychological bills,

other costs associated with the injury caused by the agency's actions,

and an explanation for the expenditure. Id. at 9.

Upon review, we agree with the agency and find that complainant has

failed to prove her entitlement to pecuniary damages. Complainant failed

to establish a nexus between her medical expenses and the agency's

discriminatory action. Complainant requested $2,347.00 for medical

bills incurred for physical injuries when an unstable shelf fell on her.

We find that this on-the-job injury is unrelated to the harassment

complainant suffered. Additionally, complainant requested $27,640.19

in damages related to her gastric bypass surgery. Complainant claims

that she developed an eating disorder as a result of the agency's

harassment and suffered rapid weight gain. Complainant has presented

no evidence showing that she developed an eating disorder due to the

agency's harassment of her. None of the medical documentation provided

by complainant indicates that complainant developed an eating disorder.

Notably, neither complainant, nor complainant's husband mentioned anything

about an eating disorder in their affidavits in support of damages.

We find that complainant has failed to show a causal connection between

the agency's harassment of her and her gastric bypass surgery. As such,

we find that complainant is not entitled to pecuniary damages.

Non-pecuniary Damages

There is no precise formula for determining the amount of damages for

non-pecuniary losses, except that the award should reflect the nature and

severity of the harm and the duration or expected duration of the harm.

Loving v. Department of the Treasury, EEOC Appeal No. 01955789 (August 29,

1997); Rountree v. Department of Agriculture, EEOC Appeal No. 01941906

(July 7, 1995). We note that for a proper award of non-pecuniary damages,

the amount of the award should not be "monstrously" excessive standing

alone, should not be the product of passion or prejudice, and should be

consistent with the amount awarded in similar cases. See Ward-Jenkins

v. Department of the Interior, EEOC Appeal No. 01961483 (March 4, 1999).

We note that evidence from a health care provider or other expert is

not a mandatory prerequisite for recovery of compensatory damages for

emotional harm. See Lawrence v. United States Postal Service, EEOC

Appeal No. 01952288 (April 18, 1996) (citing Carle v. Department of the

Navy, EEOC Appeal No. 01922369 (January 5, 1993)). Objective evidence

of compensatory damages can include statements from the complainant

concerning his or her 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. Id. Statements from others,

including family members, friends, health care providers, other counselors

(including clergy) could address the outward manifestations or physical

consequences of emotional distress, including sleeplessness, anxiety,

stress, depression, marital strain, humiliation, emotional distress,

loss of self-esteem, excessive fatigue, or a nervous breakdown. Id.

Complainant's own testimony, along with the circumstances of a particular

case, can suffice to sustain her burden in this regard. Id. The more

inherently degrading or humiliating the defendant's action is, the more

reasonable it is to infer that a person would suffer humiliation or

distress from that action. Id. The absence of supporting evidence,

however, may affect the amount of damages appropriate in specific

cases. Id.

In the instant case, complainant claims to have suffered emotional and

physical suffering due to the agency's harassment. Complainant's husband

states that after the harassment began, complainant rejected any contact

with him and others. Comp.'s Reply to Agency's Response to Comp.'s

Request for Damages, Ex. 2. Further, complainant's husband claims that

their relationship deteriorated so much that at one point at he moved

out of the house because they had stopped talking. Id. Complainant's

co-worker (CW1) asserts that she could see the stress taking its toll on

complainant. Comp.'s Reply, Ex. 4. A second co-worker (CW2) contends

that complainant would come to her crying and complaining about the

harassment on virtually a daily basis. Comp.'s Reply, Ex. 3. CW2 adds

that complainant was nervous all the time because of the harassment. Id.

In determining compensatory damages, the Commission strives to make

damage awards for emotional harm consistent with awards in similar cases.

The Commission finds the $8,000 awarded by the agency to be inadequate.

Thus, based on the record, we find that complainant is entitled to

an award of $35,000 in light of the emotional distress suffered.

This amount takes into account the nature of the discriminatory

actions and the severity of the harm suffered, and is consistent with

prior Commission precedent. See Campbell v. Department of Justice,

EEOC Appeal No. 01A40538 (September 14, 2005) ($33,000 awarded where

complainant suffered stress, excessive weight gain from nervous eating,

insomnia, and nightmares due to supervisor's sexual harassment);

Christian v. Department of Veterans Affairs, EEOC Appeal No. 01996342,

(September 7, 2001) ($30,000 awarded where complainant was continuously

sexually harassed by a co-worker for a period of six years, no medical

evidence produced); Joiner v. Social Security Administration, EEOC Appeal

No. 07A50049 (February 3, 2006) ($30,000 awarded where complainant

suffered sadness, anger and withdrew from normal social activities

and relationships as a result of agency's harassment). We note that

this sum is meant to compensate complainant for the emotional distress

she suffered, which was caused by the agency's discriminatory actions.

Finally, this amount meets the goals of not being motivated by passion or

prejudice, not being "monstrously excessive" standing alone, and being

consistent with the amounts awarded in similar cases. See Ward-Jenkins

v. Department of Interior, EEOC Appeal No. 01961483 (March 4, 1999)

(citing Cygnar v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989)).

Attorney's Fees and Costs

Title VII and the Commission's regulations authorize the award of

reasonable attorney's fees and costs to a prevailing complainant. 29

C.F.R. � 1614.501(e); see also EEOC's Management Directive 110 (MD-110)

(November 9, 1999) Chapter 11. Fee awards are typically calculated by

multiplying the number of hours reasonably expended times a reasonable

hourly rate, an amount also known as a lodestar. See 29 C.F.R. �

1614.501(e)(ii)(B); Blum v. Stenson, 465 U.S. 886 (1984); Hensley

v. Eckerhart, 461 U.S. 424 (1983).

All hours reasonably spent in processing the complaint are compensable,

but the number of hours should not include excessive, redundant or

otherwise unnecessary hours. MD-110 at 11-15. A reasonable hourly

rate is based on prevailing market rates in the relevant community

for attorneys of similar experience in similar cases. MD-110 at 11-6.

An application for attorney's fees must include a verified statement of

attorney's fees accompanied by an affidavit executed by the attorney of

record itemizing the attorney's charges for legal services. MD-110 at

11-9. While the attorney is not required to record in great detail

the manner in which each minute of his time was expended, the attorney

does have the burden of identifying the subject matters on which he

spent his time by submitting sufficiently detailed and contemporaneous

time records to ensure that the time spent was accurately recorded.

See Spencer v. Department of the Treasury, EEOC Appeal No. 07A10035

(May 6, 2003). The attorney requesting the fee award has the burden

of proving, by specific evidence, entitlement to the requested fees and

costs. National Ass'n of Concerned Veterans v. Department of Defense,

675 F.2d 1319 (D.C. Cir. 1982); Koren v. United States Postal Service,

EEOC Request No. 05A20843 (February 18, 2003).

Complainant requests $8,691.33 in attorney's fees and $1,629.08 in costs.

Complainant submitted a detailed fee petition explaining the time expended

on complainant's case from November 4, 1999 through March 30, 2007.

The agency identified several charges that appear vague, redundant,

or excessive. We find that the majority of the hours listed in the

fee petition are sufficiently documented to support a determination

that the nature and purpose of the so-described activities of counsel

were reasonable. We do, however, agree with the agency that some of

the entries are vague, duplicitous, or excessive. For example, an

entry dated December 9, 1999 merely states "Review of Documentation."

Comp.'s Request for Damages, Ex. 5. Further, entries related to

CW1's affidavit dated February 22 and February 23, 2007 appear to be

duplicitous and excessive without an explanation as to their necessity.

Comp.'s Request for Damages, Ex. 5. Given the number of billing entries

that are not sufficiently detailed or appear inappropriate, we conclude

that an across-the-board reduction of hours by 10% is reasonable.

Accordingly, we find that complainant is entitled to reimbursement of

attorney's fees in the amount of $7,822.20 (90% of $8,691.33).

With respect to complainant's claim for reimbursement of costs, we find

that the agency properly denied reimbursement of various costs incurred

by complainant, because the record is devoid of receipts, bills, or

other documentary evidence corroborating the requested amounts in the fee

petition and request for costs. The Commission requires that a petition

seeking reimbursement of costs be supported by detailed documentation,

including receipts. See EEOC Management Directive-110 (MD-110), as

revised November 9, 1999, Chapter 11 (stating that a verified statement

of fees and costs shall include documentation of costs); Drummond-Irving

v. Department of Homeland Security, EEOC Appeal No. 0720060051 (May 17,

2007) (citing Canady v. Department of the Army, EEOC Request No. 05890226

(December 27, 1989)). The record is devoid of any documentation to support

the attorney's expenses apart from an invoice from a medical facility for

copies of complainant's medical records at a cost of $43.13. Therefore,

we find that the complainant is only entitled to $43.13 in costs.

CONCLUSION

We MODIFY the agency's final decision and direct the agency to comply

with the Order below which adds the remedy of the consideration of

discipline and EEO training of responsible agency officials.

ORDER

The agency shall take the following remedial actions to the extent it

has not already provided the following relief:

1. Within 30 days from the date this decision becomes final, to the

extent that it has not already done so, restore to complainant 61.5

hours of sick leave and 8 hours of annual leave;

2. Within 30 days from the date this decision becomes final, the agency

shall pay complainant $35,000 in non-pecuniary, compensatory damages;

3. Within 30 days from the date this decision becomes final, the agency

shall provide complainant with an award of reasonable attorney's fees

in the amount of $7,822.20 and $43.13 in costs;

4. Within 180 days of the date this decision becomes final, the agency

shall, if it has not already done so, provide sufficient EEO training to

complainant's first-level supervisor (the Food Service Administrator),

complainant's second-level supervisor (the Assistant Food Service

Administrator), and any other officials in complainant's chain of

command at the United States Penitentiary in Terre Haute, Indiana that

the agency determines need such training, so that such officials become

fully cognizant of the obligations and duties imposed by Title VII,

with an emphasis on sexual harassment; and

5. Within 60 days of the date this decision becomes final, the agency

shall consider taking appropriate disciplinary action against all

responsible management officials if still employed by the agency including

complainant's first-level supervisor (the Food Service Administrator),

complainant's second-level supervisor (the Assistant Food Service

Administrator), and any other officials in complainant's chain of

command at the United States Penitentiary in Terre Haute, Indiana that

the agency's determines may warrant disciplinary action. The agency

shall report its decision to the Compliance Officer referenced herein.

If the agency decides to take disciplinary actions it shall identify the

actions taken. If the agency decides not to take disciplinary actions, it

shall set forth the reason(s) for its decision not to impose discipline.

If any of the responsible management officials have left the agency,

then the agency shall furnish documentation of the departure date(s).

POSTING ORDER (G0900)

The agency is ordered to post at its United States Penitentiary facility

in Terre Haute, Indiana copies of the attached notice. Copies of the

notice, after being signed by the agency's duly authorized representative,

shall be posted by the agency within thirty (30) calendar days of the

date this decision becomes final, and shall remain posted for sixty (60)

consecutive days, in conspicuous places, including all places where

notices to employees are customarily posted. The agency shall 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 ten (10)

calendar days of the expiration of the posting period.

ATTORNEY'S FEES (H0900)

If complainant 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.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)

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 77960, Washington,

DC 20013. 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 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) (1994 & Supp. IV 1999).

If the complainant files a civil action, the administrative processing of

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

See 29 C.F.R. � 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 29

C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests

and arguments must be submitted to the Director, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 77960,

Washington, DC 20013. 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 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 (S0408)

You have the right to file a civil action in an appropriate United States

District Court within ninety (90) calendar days from the date that you

receive this decision. If you file a civil action, you must name as the

defendant in the complaint the person who is the official agency head

or department head, identifying that person by his or her full name and

official title. Failure to do so may result in the dismissal of your

case in court. "Agency" or "department" means the national organization,

and not the local office, facility or department in which you work. If you

file a request to reconsider and also file a civil action, filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1008)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with

the Court 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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

November 24, 2009______

Date

1 We note that throughout her appeal, complainant refers to the

Administrative Judge. This case was not tried before an Administrative

Judge; rather, the agency issued final agency decisions on both the

merits of complainant's discrimination claim and damages.

2 We also note that, on appeal before the Commission, complainant does not

present any arguments concerning FAD2's award of sick and annual leave

and denial of early retirement and reimbursement of leave without pay.

Accordingly, we decline to address those matters in this decision.

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0120073964

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120073964