01976222
05-12-2000
Suzanne Morra-Morrison, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (N.E./N.Y. Metro), Agency.
Suzanne Morra-Morrison v. United States Postal Service
01976222
May 12, 2000
Suzanne Morra-Morrison, )
Complainant, )
) Appeal No. 01976222
v. ) Agency No. 4B-1174-93
) 4B-020-1068-94
William J. Henderson, )
Postmaster General, )
United States Postal Service )
(N.E./N.Y. Metro), )
Agency. )
)
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning its award of compensatory damages, issued in accordance
with two Commission decisions. The Commission found that the agency
had violated Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. � 2000e et seq., and the Rehabilitation Act of 1973, as amended,
29 U.S.C. � 791, et seq., when it discriminated against complainant
on the bases of her sex (female) and physical disability (chronic
whiplash of the lumbar and cervical spine). See Morra-Morrison v. United
States Postal Service, EEOC Appeal No. 01940642 (October 27, 1994),
request to recon. denied, EEOC Request No. 05950164 (December 18, 1996)
(order modified on own motion, but finding affirmed); and Morra-Morrison
v. United States Postal Service, EEOC Appeal No. 01962057 (December 12,
1996), request to recon. denied, EEOC Request No. 05970374 (April 24,
1997).<1> The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659
(1999)(to be codified at 29 C.F.R. � 1614.405).
ISSUE PRESENTED
The issue on appeal is whether complainant established that she is
entitled to compensatory damages beyond the $9,032.48 awarded by the
agency.
BACKGROUND
On February 1, 1993, complainant filed an EEO complaint in which she
alleged she had been discriminated against on the bases of her sex and
physical disability when the agency failed to accommodate her work
restrictions or afford her a flexible start time, and when she was
issued a Notice of Removal on December 13, 1992, for failure to be in
regular attendance (Case No. 1). Complainant also filed a grievance in
regard to this removal. Following the investigation into the complaint,
complainant requested and received a hearing before an EEOC Administrative
Judge (AJ). The AJ recommended a finding of no discrimination, which
the agency adopted. Complainant then appealed to this Commission on
November 4, 1993. While this case was pending, complainant's grievance
was heard by an arbitrator. The arbitrator ordered complainant reinstated
on November 7, 1993. The arbitrator also ordered that the December 1992
removal letter be held in abeyance for one year, on the condition that
complainant be "exemplary" in attendance. In May 1994, prior to this
Commission's decision in Case No. 1, the agency reactivated the removal
action against complainant based on her poor attendance between January 8,
1994 and April 20, 1994.
On October 27, 1994, the Commission decision in Case No 1. was issued.
The Commission partially reversed the agency's decision, finding that
the agency discriminated against complainant on the basis of her physical
disability when it failed to provide her with a reasonable accommodation
and when she was removed from the agency. See Morra-Morrison v. United
States Postal Service, EEOC Appeal No. 01940642 (October 27, 1994).
The agency requested reconsideration of this finding, which the Commission
denied as untimely on December 18, 1996. See Morra-Morrison v. United
States Postal Service, EEOC Request No. 05950164 (December 18, 1996).
In this decision, the Commission explained that it was not ordering
complainant's reinstatement because she had already been reinstated
pursuant to the arbitrator's November 1993 decision and then removed
for a second time in May 1994. Because complainant's second removal
was at issue in an EEO complaint then pending before the Commission,
the Commission found that a reinstatement pursuant to the decision in
Case No. 1 would be improper. The Commission ordered appropriate back
pay, an investigation into complainant's claim of compensatory damages,
and reasonable attorney's fees.
Meanwhile, as noted above, complainant filed a second complaint in
response to her May 1994 removal (Case No. 2). Again, the agency
adopted an AJ's recommended decision of no disability, sex, or
reprisal discrimination. Complainant appealed and this Commission
found that the second removal was motivated by sex and disability
discrimination. See Morra-Morrison v. United States Postal Service,
EEOC Appeal No. 01962057 (December 12, 1996), request to recon. denied,
EEOC Request No. 05970374 (April 24, 1997). The Commission ordered
complainant reinstated to her position with back pay, directed that her
claim for additional compensatory damages be considered, and awarded her
additional attorney's fees for the successful prosecution of Case No. 2.
Subsequently, on July 7, 1997, the agency issued a FAD on the issue
of compensatory damages. The agency awarded complainant a total of
$9,032.28. This figure was comprised of a payment for past pecuniary
losses of $3,156.14 for medical expenses, telephone calls to her attorney,
copies and postage, MasterCard finance charges, repayment of a loan
against life insurance, and overdue dental charges; a payment of future
pecuniary losses of $1,360 for therapy; and a payment of non-pecuniary
losses of $4,516.28. Citing Commission precedent, the agency arrived at
this figure by multiplying the amount of pecuniary damages by the number
of years complainant would continue to receive treatment, in this case one
year. It is this final agency decision which complainant now appeals.<2>
CONTENTIONS ON APPEAL
On appeal, complainant raises a number of contentions. In sum, she
argues that the FAD did not properly calculate her pecuniary losses,
did not adequately compensate her for her emotional pain and suffering,
did not properly apply Commission guidance, and was inconsistent with
the evidence she submitted. Complainant also argues that the agency's
failure to provide interim relief added to her hardship and that the
agency had not implemented the relief ordered in the Commission's December
18, 1996 decision.
In response, the agency argues that it did properly calculate the
pecuniary and non-pecuniary losses complainant suffered and asks that
its decision be affirmed.
ANALYSIS AND FINDINGS
Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant
who establishes her claim of unlawful discrimination may receive, in
addition to equitable remedies, compensatory damages for past and future
pecuniary losses (i.e., out-of-pocket expenses) and non-pecuniary losses
(e.g., pain and suffering, mental anguish). 42 U.S.C. � 1981a(b)(3).
For an employer with more than 500 employees, such as the agency,
the limit of liability for future pecuniary and non-pecuniary damages
is $300,000. Id. The Supreme Court has recently confirmed that the
Commission possesses the legal authority to require federal agencies to
pay compensatory damages. See West v. Gibson, 527 U.S. 212 (1999).
The particulars of what relief may be awarded, and the proof necessary to
obtain that relief, are set forth in detail in Compensatory and Punitive
Damages Available Under Section 102 of the Civil Rights Act of 1991,
EEOC Notice No. N-915.002 (July 14, 1992) (Compensatory Damages Notice).
Briefly stated, the complainant must submit evidence to show that the
agency's discriminatory conduct directly or proximately caused the losses
for which damages are sought. See Damiano v. United States Postal
Service, EEOC Request No. 05980311 (February 26, 1999). The amount
awarded should reflect the extent to which the agency's discriminatory
action directly or proximately caused harm to complainant and the extent
to which other factors may have played a part. See Compensatory Damages
Notice, at 11-12. The amount of non-pecuniary damages should also
reflect the nature and severity of the harm to complainant, and the
duration or expected duration of the harm. Id. at 14. A complainant
is required to provide evidence that will allow an agency to assess the
merits of complainant's request for emotional distress damages. See Carle
v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993).
Evidence of Injury and Causation
The Commission has found that complainant was denied a reasonable
accommodation for her physical disability and was fired twice due
to discriminatory animus on the part of the agency. The record
establishes that complainant suffered severe economic harm from these
two discriminatory terminations, finding it impossible to keep up with
credit card, doctor and other payments during the years between her
terminations and reinstatement. Moreover, complainant, her mother, and
a friend testified to the personality changes complainant went through
after being terminated, noting her depression and anxiety. Complainant
testified that the economic hardship caused by the loss of her job, in
addition to her depression, in turn caused the failure of her marriage.
Complainant's therapist confirmed that complainant was suffering from
depression and anxiety and that this was partially caused by the loss
of her job. Furthermore, the agency, in finding that complainant was
owed compensatory damages, agreed that there is a causal connection
between complainant's injuries and the agency's discrimination and made
no argument that her economic losses or emotional problems were caused
by other factors.<3>
Calculation of Damages Payable
1. Past Pecuniary Damages
The agency determined that it would award complainant $3,156.14.
This award included $2,335 for past medical expenses. The agency
did not provide a complete explanation as to which of complainant's
medical expenses this was meant to cover. We assume from the evidence
provided that this figure is based on a payment of $1,360 for 16 therapy
sessions and $975 for an overdue bill from complainant's chiropractor.
Complainant also requested $273.99 as reimbursement for medication.
A review of the evidence establishes that although complainant did have
a prescription for medication to help her with her depression, she did
not provide any documentation of the expense incurred to obtain this
medication. Consequently, we cannot award complainant compensation for
this expense. See Hogeland v. Department of Agriculture, EEOC Appeal
No. 01976440 (June 14, 1999) (complainant presented no documentary
evidence in connection with several visits to doctors and was therefore
not awarded compensation for those expenses).
On the other hand, complainant does provide evidence that she had 16
therapy sessions to treat her depression at a cost of $85.00 per session.
A statement from complainant's therapist indicates that her depression
was probably caused equally by the loss of her job and her divorce.
Complainant testified that the loss of her job led to her divorce.
We therefore find that complainant's depression is seventy-five percent
attributable to the agency's discriminatory actions. See Rountree
v. Department of Agriculture, EEOC Appeal No. 01941906 (July 7, 1995)
(Commission awarded half the cost of therapy after finding discrimination
was only partial cause of complainant's distress). Complainant's past
therapy costs of $1,360 therefore result in a compensatory damages award
of $1,020.
In addition, complainant testified that her chiropractor costs would have
been paid by insurance had she not been fired. The record reveals that
complainant was not reinstated, and did not obtain insurance coverage,
until August 16, 1997. We therefore agree with the agency's determination
that complainant's award for past medical expenses should include the $975
owed to her chiropractor as of October 8, 1996. Moreover, complainant
submitted additional bills from her chiropractor for treatments received
from January 1997 through June 1997, totaling $1,183.10. Complainant's
past chiropractor costs therefore total $2,158.10. Accordingly, the
total award for past medical expenses is $3,178.10.
Complainant submitted evidence of other economic costs she suffered
due to her termination. With little explanation, the agency credited
some of complainant's receipts and not others. For example, the agency
awarded complainant $33.49 for the cost of copies and postage which she
incurred in processing her case. Yet complainant provided receipts for
copies and postage in the amount of $140.19. In addition, the agency
awarded complainant damages for certain finance charges she received due
to failure to pay her credit cards, but not others. After a thorough
review of the record, we find that complainant has established that the
following past pecuniary losses were due to the agency's discrimination:
$59.32 for phone calls to attorney ($28.56 more than the agency awarded);
$140.19 for postage and copies ($106.70 more than the agency awarded);
$839.63 for credit card finance charges ($287.68 more than the agency
awarded); $23.24 for a loan taken against life insurance policy (as
awarded by the agency); and $181.70 for overdue dental charges (as
awarded by the agency).
Complainant should thus be awarded a total of $4,422.18 for past pecuniary
losses. While complainant testified to a number of other pecuniary
losses she suffered, no documentation was offered to establish these
losses. In addition, only illegible receipts were submitted for other
losses. Consequently, we cannot award compensation for these losses.
See Hogeland, supra.<4>
We note that in a supplemental submission to the Commission, complainant
argues that she incurred increased tax liability as a result of the
lump-sum back pay award made by the agency and as a result of the
agency's failure to provide her with interim relief. She refers to
Commission precedent holding that if a complainant establishes pecuniary
losses due to an increased tax burden from a lump-sum back pay award,
consideration of these losses should be included in conjunction with
compensatory damages. See Kalra v. Department of Transportation, EEOC
Appeal No. 01924002 (February 25, 1994). In support of her argument,
complainant submitted various tax documents. She does not, however,
explain what her increased liability was, only noting the taxes she
was required to pay and arguing that in past years, she always received
a tax refund. Without more specific evidence this Commission does not
have the capability of determining what complainant's tax liability would
have been if she had not been discriminated against. Complainant has
the burden of establishing her pecuniary losses, and she cannot do so
by vague arguments about her increased liability.
2. Future Pecuniary Damages
The record establishes that complainant's therapist believes complainant
will require 6-12 months of additional therapy, perhaps more. This
therapy includes biweekly sessions at $85.00 a session. The agency
determined that complainant should receive $1,360.00 for this therapy.
Again, the agency did not explain how it arrived at this figure, although
at $85.00 per biweekly session, this amount would pay for about 8 months
of therapy. The agency made no remarks regarding complainant's request
for the costs of her future medication.
We first note that, as with the costs of past medication, complainant
has failed to provide any documentation concerning the cost of future
medication. Consequently, we cannot award her compensation for these
costs. See Hogeland, supra.
Moreover, as noted above, complainant's therapist believes that
complainant's need for therapy is due equally to the loss of her job
and the end of her marriage. Complainant testified that her marriage
ended due to the hardships caused by the loss of her job. We reiterate
our finding that the agency's discrimination is therefore the cause of
seventy-five percent of complainant's depression and anxiety. We thus
award complainant $1,530 for future pecuniary losses, 75% of the cost
of 12 months of therapy. See Rountree v. Department of Agriculture,
EEOC Appeal No. 01941906 (July 7, 1995).<5>
3. Non-pecuniary Damages
There are no definitive rules governing the amount of non-pecuniary
damages to be awarded. Non-pecuniary damages must be limited, however,
to the sums necessary to compensate the injured party for actual harm,
even where the harm is intangible. The existence, nature, and severity
of emotional harm must be proved. See Compensatory Damages Notice, at 11.
Emotional harm may manifest itself, for example, as sleepiness, anxiety,
stress, depression, marital strain, humiliation, emotional distress,
loss of self esteem, excessive fatigue, or a nervous breakdown. Id.
A proper award should take into account the severity of the harm and the
length of time that the injured party suffered the harm. See Carpenter
v. Department of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995).
Finally, 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
Jackson v. United States Postal Service, EEOC Appeal No. 01972555 (April
15, 1999), citing Cyanar v. City of Chicago, 865 F. 2d 827, 848 (7th
Cir. 1989).
In the case at hand, complainant testified to her depression, anxiety,
deteriorating memory, sleep problems, loss of self-esteem, marital
problems, humiliation, and alienation she has felt due to her two
discriminatory terminations and the loss of economic stability that
resulted. Her feelings of hopelessness have led to a significant weight
gain and a feeling of being a failed mother because she cannot provide
for her child. Complainant's credit rating has been damaged due to
unpaid doctor's bills sent to a collection agency and a lien against
her house due to water and sewage bills she could not pay.
Complainant's mother and a friend/co-worker supported complainant's
testimony. Complainant's mother, who has lived in the same two-family
house with complainant for sixteen years and thus sees complainant
almost every day, testified that after her terminations, complainant
became verbally, emotionally and socially withdrawn, in addition to being
extremely discouraged, worried and distracted. Complainant's friend and
former co-worker testified that since being terminated, complainant is
not the happy, friendly, outgoing person she used to be, that she has
gained a great deal of weight and that she has become very withdrawn.
Complainant's therapist confirmed that complainant's depression and
anxiety were caused by the loss of her job and her failed marriage.
The therapist diagnosed complainant with a type of depression known
as dysthymia, a diagnosis which indicates complainant experienced a
chronically depressed mode for more days than not for at least two
years. Complainant's doctor also prescribed medication to help treat
complainant's depression and indicated that she would, more than likely,
be continuing on the medication.<6> On appeal, complainant notes that
since being informed that she was to report for duty at the agency
facility where the two discriminatory terminations occurred, she has
had to take an anti-anxiety medication in addition to the anti-depressant.
A review of Commission files indicates that, as noted above, complainant
has had to file two petitions for enforcement in order to force the
agency to comply with Commission orders and grant complainant the relief
to which she is entitled. This delay has contributed to her emotional
harm, making it impossible for complainant to move past the discriminatory
actions of the agency.
Complainant's emotional suffering began with her initial termination in
December 1992 and continues to the present. Moreover, her therapist
noted that complainant's treatment should continue for an additional
6-12 months (this, as of June 11, 1997). Complainant has therefore
suffered the harm caused by the agency's discriminatory terminations
for a minimum of 5 � years, not including the time it may take her to
get back on her feet from an economic standpoint, or the time it will
take the agency to fully enact the remedies ordered by the Commission.
The agency determined that complainant's non-pecuniary damages award
should equal the pecuniary damages award multiplied by the years she
would continue to receive treatment. This formula seems to be derived
from a Commission decision which awarded a complainant a non-pecuniary
award five times the amount of his pecuniary award, where complainant was
expected to continue to suffer from the effects of discrimination for
at least five more years. See Wallis v. United States Postal Service,
EEOC Appeal No. 01950510 (November 13, 1995). That case, however,
did not create a formula for devising non-pecuniary damages. The award
in Wallis was based on the facts of that particular case and took into
account the severity and length of harm and awards in similar cases.
We therefore disagree with the agency's calculation and instead look to
the facts of the case at hand and awards in similar cases to determine
an appropriate award.
Several Commission decisions have awarded compensatory damages in cases
somewhat similar to complainant's. In Bever v. Department of Agriculture,
EEOC Appeal No. 01953949 (October 31, 1996), the Commission ordered
an award of $15,000 in non-pecuniary damages where the complainant's
situational anxiety was shown to be linked to harassment, the complainant
was required to take medication as a result thereof, and the complainant's
symptoms included uncontrolled crying, weight gain, and depression.
Terrell v. Department of Housing and Urban Development, involved
a complainant who was non-selected for a position due to his sex.
EEOC Appeal No. 01961030 (October 25, 1996). The complainant presented
evidence of numerous emotional problems that lasted for approximately
18 months. The Commission found that the majority of the complainant's
emotional problems were not shown to be caused by the adverse actions of
the agency, but noted that his marital problems and financial difficulties
were, to a limited extent, exacerbated by the discrimination and awarded
$25,000.
In a more recent case, the Commission awarded a complainant $35,000
in non-pecuniary damages where complainant testified to depression and
stress, and was diagnosed with dysthymia, as in the case at hand, caused
by unfair work assignments, a fully successful performance appraisal,
and harassment. See Johnson v. Department of the Interior, EEOC Appeal
No. 01961812 (June 18, 1998).
Lastly, in Bernard v. Department of Veterans Affairs, EEOC Appeal
No. 01966861 (July 17, 1998), the Commission awarded $80,000 to a
complainant who was denied reasonable accommodation and non-selected
for a position. Complainant, though his own testimony and testimony of
friends and family, presented evidence that he experienced symptoms of
depression, as well as headaches, ringing in his ears, vomiting, raised
blood pressure, grinding of his teeth, and insomnia over a 5 year period.
In determining the amount of non-pecuniary damages to which complainant
in the case at hand is entitled, the Commission has considered that
complainant has suffered from the effects of the discrimination for
five years (as of 1997) and was expected to continue suffering for
another year or more. We have considered the nature and severity of the
discrimination, especially the fact that complainant was subjected to
multiple discriminatory terminations, as well as the nature and severity
of complainant's emotional distress and the fact that a great deal of
that stress was caused by the discrimination. Finally, we have taken
into consideration amounts awarded in similar cases and the goals of
compensatory damages. Based on these factors, the Commission finds that
complainant is entitled to non-pecuniary damages in the amount of $60,000.
Interest
Complainant claims interest on her compensatory damages award.
Complainant would be entitled to an award of interest for any agency
delay in paying proven compensatory damages. See April v. Department
of Agriculture, EEOC Appeal No. 01963775 (June 5, 1997). That interest
would not begin to accrue, however, until the agency actually incurs
the underlying liability. See Cole v. United States Postal Service,
EEOC Petition No. 04950009 (February 19, 1997). In the case at hand,
the amount of compensatory damages is the subject of this appeal.
The agency will therefore not incur interest liability until the date
that this decision becomes final. The instant case is distinguishable
from McCann v. Department of the Air Force, EEOC Appeal No. 01971851
(October 23, 1998) . In McCann, the agency had issued a final decision
in which it promised to pay complainant a specific sum as compensatory
damages by a specific date, but failed to do so. Here, the FAD made
no guarantee that the compensatory damages award would be paid by a
certain date and given complainant's appeal, we find that the agency is
justified in waiting to award compensatory damages until this decision
becomes final. The agency can avoid an interest payment if it promptly
complies with our order.
CONCLUSION
Based upon our review of the record, and for the foregoing reasons,
the Commission finds that complainant is entitled to receive an award
of compensatory damages in the amount of $65,952.18 of which $60,000
constitutes compensation for non-pecuniary expenses, and $5,952.18
constitutes compensation for complainant's out-of-pocket expenses.
ORDER
The agency is ORDERED to take the following remedial action:
Within thirty calendar days of the date that this decision becomes
final, the agency shall issue a check to complainant in the amount
of $65,952.18. The agency is further directed to submit a report of
compliance, as provided in the statement below entitled "Implementation
of the Commission's Decision." The report shall include evidence that
the corrective action has been implemented.
2. Since 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)) she is entitled to
an award of reasonable attorney's fees incurred in the processing of
her compensatory damages claim. 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
calendar days of this decision becoming final. The agency shall then
process the claim for attorney's fees in accordance with 29 C.F.R. �
1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to the
complainant. If the agency does not comply with the Commission's order,
the complainant may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). The complainant also has the right to file a
civil action to enforce compliance with the Commission's order prior
to or following an administrative petition for enforcement. See 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �
1614.503(g). Alternatively, the complainant has the right to file a
civil action on the underlying complaint in accordance with the paragraph
below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407
and 1614.408. A civil action for enforcement or a civil action on the
underlying complaint is subject to the deadline stated in 42 U.S.C. �
2000e-16(c)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, MUST BE FILED
WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR
DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS OF
RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.405); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.604). The request or opposition must
also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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:
May 12, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 While this case was pending, complainant filed two Petitions for
Enforcement. On November 3, 1997, the Commission found that the
agency had not fully complied with the Orders issued in Case No. 1
and Case No. 2 and ordered it to do so. See Morra-Morrison v. United
States Postal Service, EEOC Petition No. 04950003 (November 3, 1997).
Complainant filed another petition for enforcement and again, on June 2,
1999, the Commission found that the agency was still not in compliance
with the Orders issued in complainant's cases and ordered the agency
to take numerous actions. See Morra-Morrison v. United States Postal
Service, EEOC Petition No. 04980023 (June 2, 1999).
3 The Civil Rights Act of 1991, Section 1977A(3) provides that
compensatory damages are not available in cases where findings of
discrimination under the Rehabilitation Act for failure reasonably to
accommodate are made, but where an agency has made a "good faith" effort
to accommodate the complainant. Here, although the first termination
was due to a failure to accommodate, the agency did not argue that it
had acted in good faith and should therefore not be obligated to pay
compensatory damages. Indeed, the agency acknowledged that it should
pay compensatory damages to complainant. This issue will therefore not
be discussed further.
4 Complainant also requested pecuniary damages to pay for the lien on her
house that resulted from unpaid water and sewer bills, arguing that she
would have paid the bills had she not been terminated. We note, however,
that a lien is not an additional expense, but rather a means of securing
a debt. Complainant has not supplied any evidence that the lien caused
her an expense in addition to the original water and sewer bills. She is
therefore not entitled to pecuniary damages in relation to the lien.
5 We note that complainant's July 27, 1997 submission to the agency
included a letter from her chiropractor indicating that complainant
requires life-long chiropractic treatment. Complainant's back condition
was not caused by the agency's discrimination and the agency is under no
obligation to award complainant future medical costs for conditions that
do not stem from its unlawful behavior. As noted above, we agree with
complainant that the agency should reimburse complainant for payments
she made to her chiropractor which would have been paid by her insurance
had she not been terminated, but this does not mean that future payments
to the chiropractor incurred after complainant's reinstatement are the
agency's responsibility.
6 Although the doctor did not indicate how long complainant would
continue to take medication, she did note that future treatment should
last 6-12 months, and perhaps longer.