Tammera Schrahl, Complainant,v.Togo D. West, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionDec 15, 1999
01961614 (E.E.O.C. Dec. 15, 1999)

01961614

12-15-1999

Tammera Schrahl, Complainant, v. Togo D. West, Secretary, Department of Veterans Affairs, Agency.


Tammera Schrahl, )

Complainant, )

v. ) Appeal No. 01961614

) Agency No. 94-1795

Togo D. West, ) Hearing No. 350-95-8018X

Secretary, )

Department of Veterans Affairs, )

Agency. )

DECISION

Complainant timely initiated an appeal to this Commission from a final

agency decision ("FAD") 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 accepted pursuant

to the provisions of EEOC Order No. 960, as amended.

The issue presented is the amount of compensatory damages which should

be awarded to complainant in light of the agency's finding that she was

subjected to sexual harassment. The agency accepted the EEO complaint

filed by complainant and complied with all procedural prerequisites.

Pursuant to complainant's request, the complaint was heard before an

EEOC Administrative Judge ("AJ"). After the hearing, the AJ issued a

recommended decision ("RD") finding discrimination.

Specifically, the AJ found that from December 12, 1993, to March 20,

1994, complainant was under the direct supervision of a male Health

Aide Supervisor (the "Supervisor"). On January 1, 1994, the Supervisor

sexually harassed one of complainant's coworkers when he took her into a

vacant office, put his arms around her, tried to kiss her and told her he

wanted to make love. The coworker refused and reported the incident in

early February 1994. The Supervisor denied the incident and the Chief

of Human Resources Management told the coworker that it was her word

against the Supervisor's word. The agency issued a memorandum to the

Supervisor telling him that he had been accused of sexual harassment and

reiterating the agency's zero tolerance policy on sexual harassment.

Shortly thereafter, the Supervisor was temporarily promoted to the

position of Housekeeping Aide Foreman of a different shift. Accordingly,

he was no longer complainant's (or the coworker's) immediate supervisor.

When told of this, the coworker chose not to pursue her complaint.

On March 28, 1994, the Supervisor approached complainant in the workplace

and stated: "You have nice t-ts, but I'm going to have to put a bag

over your head to [expletive deleted] you." After this statement,

complainant began to cry. She was shocked, upset and had nightmares for

about a week. After she complained about the incident, the Supervisor

denied it and complainant was also told that it was her word against the

Supervisor's word. The agency determined that the charge could not be

substantiated or corroborated and did nothing further at that time.

On April 1, 1994, the Supervisor made lewd and vulgar comments to a third

health aide. When she complained, her supervisor told her she would have

to pursue the matter because he could not. In October 1994, this aide

complained of another incident of sexual harassment by the Supervisor.

After this complaint, an investigation was conducted and a Board of

Inquiry convened to investigate the charges of sexual harassment against

the Supervisor. After the investigation, which complainant participated

in, the Supervisor was removed from Federal employment in April 1995.

The AJ held that complainant established that she had been subjected to

sexual harassment in violation of Title VII. See Meritor Savings Bank

F.S.B. v. Vinson, 477 U.S. 57 (1986); EEOC Guidelines on Discrimination

Because of Sex, 29 C.F.R. � 1614.11(a).<1> The AJ was not persuaded

by complainant's allegation that the Supervisor had subjected her to

continuing and ongoing harassment by such matters as "undressing her

with his eyes," and instead found that she had been subjected to

only the single incident described above. Nonetheless, the AJ found

that this single incident was unusually severe, involving conduct

so extremely offensive that it would embarrass, humiliate, shock and

upset any reasonable person to the extent that her working conditions

would be changed and she would find working in the presence of such a

person intolerable. Accordingly, the AJ concluded that the incident

was sufficiently severe as to constitute harassment in violation of

Title VII. The AJ further found that the agency had failed to take

immediate and appropriate action to correct the harassing behavior or

to prevent it from recurring. The AJ noted that the agency's actions

consisted of promoting the Supervisor and that the complaints were not

taken seriously and investigated until the fourth incident was reported

in October 1994. The AJ found that the agency was unable to avoid

liability for the Supervisor's actions, as there was no showing that:

(1) the acts or conduct complained of did not occur; (2) the acts or

conduct complained of were not unwelcome; (3) the harassment was not

sufficiently severe or pervasive as to alter the conditions of employment;

(4) immediate and appropriate corrective action was taken as soon as

the employer was put on notice; or (5) there was no basis for imputing

liability to the employer. See Meritor, supra.

As relief, the AJ recommended that the agency: (1) post a notice at the

applicable facility; (2) determine the appropriateness of maintaining

a permanent record of these findings for purpose of taking appropriate

personnel action against the Supervisor should he ever return or seek

to return to Federal employment; (3) review the matters giving rise to

the complaint to determine the appropriateness of taking disciplinary

action against the agency officials who failed to take immediate and

appropriate corrective action once they were placed on notice of the

Supervisor's harassing behavior; (4) take all appropriate actions to

ensure that neither complainant nor any other employee is retaliated

against for participating in this or any other EEO proceeding or opposing

unlawful employment discrimination; (5) train employees on the law

regarding sexual harassment in the workplace and the unacceptableness

of harassing behavior, whether verbal or physical; (6) conduct training

for all supervisory and managerial employees, for all persons involved

in employee relations, and for all persons involved in receiving,

investigating and processing complaints of sexual harassment at the

applicable facility, including all currently employed persons who were

in supervisory, managerial, employee relations, or EEO positions at

the facility in 1994; and (7) pay compensatory damages to complainant,

including damages for the emotional distress she suffered during the

week following the harassment incident of March 28, 1994.

With respect to pecuniary compensatory damages, the AJ reviewed

complainant's evidence and determined that there was no evidence to

support complainant's claims for such damages, and recommended against an

award of any past or future pecuniary compensatory damages. With respect

to nonpecuniary compensatory damages, the AJ found that complainant was

entitled to an award of such damages, but did not recommend a specific

amount. The AJ noted that the amount should be limited to the sum

necessary to compensate complainant for the actual harm caused by the

discrimination. The AJ found credible complainant's testimony that in

addition to crying after the incident, she had nightmares and replayed the

incident in her mind for a week. While complainant also testified that

she continued to experience headaches and other stress-related symptoms

as a result of the harassment, the AJ found that "most of her reported

emotional distress and related symptoms after the first week after the

harassment occurred stemmed from factors other than the harassment."

In its FAD, the agency adopted the RD with the following modifications:

(1) the facility was directed to notify the Supervisor in the event

that it decided to maintain a permanent record of the findings; (2)

the training recommended in the AJ's fifth recommendation was clarified

as pertaining to employees in the facility's Environment Management

Services; (3) the training recommended in the AJ's sixth recommendation

was clarified as pertaining to employees in the facility's Environment

Management Services, Supervisors in the Personnel Service and EEO Managers

or Specialists. In addition, the agency specified an award of $500.00

in compensatory damages.

On appeal, complainant's representative complains about the agency's

conduct during the processing of the complaint, but states that

complainant "will agree to resolve this issue if they ... modify

the nonpecuniary damages to $2,000 for Doctor's bills and for pain

and suffering," citing complainant's severe trauma and nightmares.

The representative further states that complainant has filed a second

EEO complaint alleging reprisal. In a letter subsequently sent by

complainant, she refers to a subsequent complaint and an appeal to the

Merit Systems Protection Board.

Legal Standards for Awarding Compensatory Damages

Section 102(a) of the 1991 Civil Rights Act ("CRA") authorizes an

award of compensatory damages for all post-Act pecuniary losses, and

for nonpecuniary losses, such as, but not limited to, emotional pain,

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

injury to character and reputation, and loss of health. In West

v. Gibson, 119 S.Ct. 1906 (1999), the United States Supreme Court

found that Congress afforded the Commission the authority to award such

damages in the administrative process. The CRA authorizes an award of

compensatory damages as part of make-whole relief for discrimination.

Section 1981a(b)(3) limits the total amount of compensatory damages

that may be awarded each complaining party for future pecuniary

losses, emotional pain, suffering, inconvenience, mental anguish,

loss of enjoyment of life, and other nonpecuniary losses, according to

the number of individuals employed by the respondent. The limit for a

respondent who has more than 500 employees is $300,000.

To receive an award of compensatory damages, a complainant must

demonstrate that s/he 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), request for

reconsideration denied, EEOC Request No. 05940927 (December 11, 1995);

Lawrence v. United States Postal Service, EEOC Appeal No. 01952288

(April 18, 1996). Compensatory and Punitive Damages Available Under

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

at 11-12, 14 (July 14, 1992).

The Commission's July 1992 notice set forth guidelines for use in

establishing entitlement to compensatory damages. See id. at 8-14.

Such damages may be awarded for past pecuniary losses, future pecuniary

losses, and nonpecuniary losses directly or proximately caused by the

agency's discriminatory conduct. Pecuniary losses are out-of-pocket

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

including job-hunting expenses, moving expenses, medical expenses,

psychiatric expenses, physical therapy expenses, and other quantifiable

out-of-pocket expenses. Past pecuniary losses are pecuniary losses

that are incurred prior to the resolution of a complaint via a finding

of discrimination, the issuance of a full-relief offer, or a voluntary

settlement. Future pecuniary losses are losses that are likely to occur

after resolution of a complaint. Nonpecuniary losses are losses that

are not subject to precise quantification including emotional pain,

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

injury to professional standing, injury to character and reputation,

injury to credit standing, and loss of health.

"[C]ompensatory damage awards must be limited to the sums necessary

to compensate [a complainant] for actual harm, even if the harm is

intangible." Thus, a compensatory damages award should reimburse

a complainant for proven pecuniary losses, future pecuniary losses,

and nonpecuniary losses. There are no precise formulas for determining

the amount of damages for nonpecuniary losses. Damages awards for

nonpecuniary losses that have been assessed by juries and courts have

varied significantly. An award of compensatory damages for nonpecuniary

losses, including emotional harm, should reflect, however, the extent

to which the respondent directly or proximately caused the harm and

the extent to which other factors also caused the harm. An award of

compensatory damages for nonpecuniary losses should also reflect the

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

of the harm.

In Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5,

1993), the Commission described the type of objective evidence that an

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

for emotional distress damages:

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

describing her emotional distress, and statements from witnesses, both

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

emotional distress, such statements should include detailed information

on physical or behavioral manifestations of the distress, information on

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

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

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

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

Evidence may include statements from the complainant concerning his/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

nonpecuniary losses that are incurred as a result of the discriminatory

conduct. Statements from others, including family members, friends,

and health care providers could address the outward manifestations or

physical consequences of emotional distress, including sleeplessness,

anxiety, stress, depression, marital strain, humiliation, emotional

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

Objective evidence also may include documents indicating a complainant's

actual out-of-pocket expenses related to medical treatment, counseling,

and so forth, related to the injury allegedly caused by discrimination.

In determining damages, the agency is only responsible for those damages

that are clearly shown to be caused by the alleged discriminatory conduct,

not for any and all damages in general.

In the instant case, AJ was not persuaded that complainant was entitled

to nonpecuniary damages she sought. In addition, the AJ, who had the

opportunity to hear complainant first hand, was not persuaded that

complainant continued to experience emotional distress attributable

to the incident of sexual harassment after a week. In general, to the

extent it is based on personal observation of the demeanor and conduct

of the witness at the hearing, the Commission will not disturb the

credibility determinations of an AJ. See Universal Camera Corp. v. NLRB,

340 U.S. 474, 496 (1951). While complainant proved that she suffered

emotional distress causally connected to incident, in determining the

amount of a compensatory damages award, we are guided by the principle

that a compensatory damages award is limited to the sums necessary to

compensate her for the actual harm caused by the agency's discriminatory

action and we must attempt to affix a reasonable dollar value to

compensate complainant for that portion of her emotional distress

and related symptoms that were caused by the agency's discrimination.

See EEOC Notice No. N 915.002 at 13 (July 14, 1992).

The Commission notes that damage awards for emotional harm are difficult

to determine and that there are no definitive rules governing the

amount to be awarded in given cases. In this regard, a proper award

must meet two goals: that it not be "monstrously excessive" standing

alone and that it be consistent with awards made in similar cases.

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

We further note that jury and court awards for nonpecuniary damages

based on humiliation and embarrassment have varied considerably.

See, e.g., Kuntz v. City of New Haven, 3 A.D. Cas. (BNA) 1590,

1592 (D.C. Conn.) ($500.00 award for emotional distress based on

plaintiff's testimony that he was "disappointed", "cranky" with

family and friends, "embarrassed" at not having been promoted, and

had many sleepless nights), aff'd without opinion, 29 F.3d 622 (2d

Cir.), cert. denied, 115 S. Ct. 667 (1994); Sassaman v. Heart City

Toyota, 66 Fair Empl. Prac. Cas. (BNA) 1230, 1236 (N.D. Ind. 1994)

(jury award of $2,000.00 in nonpecuniary damages appropriate in sexual

harassment case based on plaintiff's testimony concerning humiliating,

degrading, and embarrassing conduct of four male supervisory employees

and testimony of employer's medical expert that plaintiff likely would

suffer "daily pain" having to work in hostile environment); see also

Turic v. Hospitality House, Inc., 849 F. Supp. 544 (W.D. Mich. 1994)

($50,000.00 in sex and religion discrimination/termination case); EEOC

v. AIC Security Investigations, Ltd., 823 F. Supp. 571 (N.D. Ill. 1993)

($50,000.00 in disability/termination case); McAdams v. United Parcel

Service, Inc., 2 A.D. Cas. (BNA) 1489 (D. Minn. 1993) ($35,000.00 in

failure to accommodate case).

In Lawrence v. United States Postal Service, EEOC Appeal No. 01952288

(April 18, 1996), where the complainant was found to have suffered

sexual harassment for a short period of time in a situation similar

to complainant's, and where the agency also failed to take appropriate

action to promptly stop the harassment, the Commission awarded $3,000

in compensatory damages. Because in Lawrence, the complainant also

suffered defamation, which was not an issue in the instant case, we

believe complainant to be entitled to $1,500 in compensatory damages.

While complainant nowhere contends that the agency has not implemented

the relief directed in the FAD, the Commission will nonetheless order

the agency to provide such relief to the extent that the agency has not

yet done so. Therefore, if the agency has not provided such relief,

and does not comply with the Commission's Order, complainant may petition

the Commission for enforcement of the Order. 29 C.F.R. � 1614.503(a).

Based upon a thorough review of the record, and for the foregoing reasons,

it is the decision of the Commission to AFFIRM the FAD's finding that

complainant was subjected to sexual harassment and to MODIFY the agency's

award of relief. Accordingly, the agency is directed to comply with

the following ORDER.

ORDER

To the extent it has not already done so, the agency is ordered to take

the following remedial actions:

(1) The agency shall issue a check to complainant for $1,500.00 within

sixty calendar days of the date this decision becomes final.

(2) The agency shall review the matters giving rise to the instant

complaint to determine the appropriateness of taking disciplinary

action against the agency officials who failed to take immediate and

appropriate corrective action once they were placed on notice of the

Supervisor's harassing behavior. The agency shall record the basis

for the decision whether to take disciplinary action and maintain such

records for at least three (3) years.

(3) The agency shall take all appropriate actions to ensure that

neither complainant nor any other employee is retaliated against in

any way for filing a charge or participating in this or any other EEO

proceeding or opposing unlawful discriminatory employment practices.

(4) The agency shall conduct training for employees of the Medical

Center staff of the applicable facility on the current state of the law

regarding sexual harassment in the workplace, placing special emphasis on

the unacceptableness of harassing behavior, whether verbal or physical.

(5) The agency shall conduct training for to its managers of the

Environment Management Services, supervisors of the Personnel Service and

the EEO Managers and Specialists at the applicable facility addressing

these employees' responsibilities to prevent and eliminate discrimination

in the Federal workplace and in their obligations under EEO law, again

placing special emphasis on the prevention and elimination of sexual

and sex-based harassment. The agency shall post copies of its sexual

harassment policy at the applicable facility.

The agency is further directed to submit a report of compliance, as

provided in the statement entitled "Implementation of the Commission's

Decision." The report shall include supporting documentation verifying

that the corrective action has been implemented.

POSTING ORDER (G1092)

The agency is ORDERED to post at its Phoenix Veterans' Administration

Medical Center 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 (H1199)

If complainant has been represented by an attorney (as defined by

64 Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �1614.501(e)(1)(iii)), he/she is entitled to an

award of reasonable attorney's fees incurred in the processing of the

complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall

be paid by the agency. The attorney shall submit a verified statement of

fees to the agency -- not to the Equal Employment Opportunity Commission,

Office of Federal Operations -- within thirty (30) calendar days of this

decision becoming final. The agency shall then process the claim for

attorney's fees in accordance with 29 C.F.R. � 1614.501.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30) calendar

days of the completion of all ordered corrective action. The report shall

be submitted to the Compliance Officer, Office of Federal Operations,

Equal Employment Opportunity Commission, P.O. Box 19848, Washington,

D.C. 20036. The agency's report must contain supporting documentation,

and the agency must send a copy of all submissions to the complainant.

If the agency does not comply with the Commission's order, the complainant

may petition the Commission for enforcement of the order. 29 C.F.R. �

1614.503(a). The complainant also has the right to file a civil action

to enforce compliance with the Commission's order prior to or following

an administrative petition for enforcement. See 64 Fed. Reg. 37,644,

37,659-60 (1999) (to be codified and hereinafter referred to as 29

C.F.R. ��1614.407, 1614.408), and 29 C.F.R. � 1614.503(g). Alternatively,

the complainant has the right to file a civil action on the underlying

complaint in accordance with the paragraph below entitled "Right to File

A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for

enforcement or a civil action on the underlying complaint is subject to

the deadline stated in 42 U.S.C. � 2000e-16(c)(Supp. V 1993). If the

complainant files a civil action, the administrative processing of the

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

See 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. The appellate decision involved a clearly erroneous interpretation

of material fact or law; or

2. The appellate decision will have a substantial impact on the policies,

practices, or operations of the agency.

Requests to reconsider, with supporting statement or brief, MUST BE FILED

WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR

DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS

OF RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.405). All requests and arguments must be

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

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

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

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

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

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

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

other party.

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

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. Any supporting documentation

must be submitted with your request for reconsideration. The Commission

will consider requests for reconsideration filed after the deadline only

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

RIGHT TO FILE A CIVIL ACTION (R0993)

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. 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. 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 (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:

December 15, 1999

________________

___________________________

DATE

Frances M. Hart

Executive

Officer

Executive

Secretariat

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

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

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_________________________

_________________________

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.