Taveah George, Complainant,v.Tommy G. Thompson, Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity CommissionJul 21, 2004
07A30079 (E.E.O.C. Jul. 21, 2004)

07A30079

07-21-2004

Taveah George, Complainant, v. Tommy G. Thompson, Secretary, Department of Health and Human Services, Agency.


Taveah George v. Department of Health and Human Services

07A30079

July 21, 2004

.

Taveah George,

Complainant,

v.

Tommy G. Thompson,

Secretary,

Department of Health and Human Services,

Agency.

Appeal No. 07A30079

Agency Nos. IHS07498; IHS01000

Hearing No. 310-A0-5371X

DECISION

Following its February 28, 2003 final order, the agency filed a timely

appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405.

On appeal, the agency requests that the Commission affirm its rejection

of an EEOC Administrative Judge's (AJ) finding that the agency subjected

complainant to a hostile work environment on the bases of her sex

and disability, and did not provide her a reasonable accommodation.

The agency also requests that the Commission affirm its rejection of

the AJ's order of remedies. For the following reasons, the Commission

REVERSES in part, and AFFIRMS in part, the agency's final order.

Complainant, a former Supervisory Employee Relations Specialist,

GS-671-12, employed at the agency's Oklahoma City Area Office, filed

formal EEO complaints with the agency, alleging that the agency had

discriminated against her on the basis of her sex (female), in violation

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

42 U.S.C. � 2000e et seq., on the basis of disability, in violation

of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),

as amended, 29 U.S.C. � 791 et seq., and on the basis of reprisal for

prior EEO activity [arising under the Rehabilitation Act] when she was

subjected to a hostile work environment beginning in or about July 1998,

that resulted in her reassignment from a Supervisory Employee Relations

Officer position, GS-230-12, to a Health Systems Specialist position,

GS-671-12.

In her complaint, complainant alleged that she was subjected to the

following unwelcome conduct from management, which taken as a whole,

constitute unlawful harassment: Her supervisor (S1) ignored her during

meetings; S1 attacked and demeaned her verbally; S1 failed to share

information with her that was pertinent to her program; S1 asked all

of the male department heads, and not her, to fill in as a personnel

manager in S1's absence; S1 rarely took complainant's recommendations

into consideration; S1 understaffed complainant's department, however,

when a male department head requested assistance, he usually received

it; S1 usually did not permit complainant to attend annual personnel

officers conferences, while male department heads were allowed to

attend; S1 refused to sign a performance appraisal that complainant

had prepared for an employee under her supervision; complainant was

permitted to work from home between April and November 1998, but was

only granted such permission for two weeks at a time, and therefore,

complainant was required to continually request the same accommodation;

complainant did not have a valid EPMS for 1998; on approximately October

30, 1998, complainant was reassigned to a non-supervisory position;

in approximately May or June 1999, S1 allowed confidential medical

information about complainant to be disclosed without her permission;

and, on July 20, 1999, complainant received an �excellent� rather than

an �outstanding� rating on her 1997 EPMS.

At the conclusion of the investigation, complainant was provided a

copy of the investigative report and requested a hearing before an AJ.

Following a hearing, the AJ found that complainant was subjected to a

hostile work environment on the basis of her disability. In so finding,

the AJ determined that complainant was an individual with a disability

pursuant to the Rehabilitation Act, in that she was substantially limited

in major life activities related to her mobility. Specifically, the

AJ credited complainant's testimony that due to lupus and rheumatoid

arthritis she is �unable to perform routine household tasks because

of significant limitations on her ability to walk, stand or sit for

extended periods.� AJ Decision at 26. The AJ also noted complainant's

testimony that her chronic rheumatoid arthritis flares up as a result

of stress. The AJ then found that the agency provided complainant

with a reasonable accommodation when it permitted complainant to work

at home for a period of time in 1998. However, the AJ concluded that

when the agency reassigned complainant to a non-supervisory position,

this constituted a denial of reasonable accommodation because the agency

made the reassignment without first engaging in the required interactive

process with complainant. The AJ noted that complainant had not asked

to be assigned to a new area, but had merely requested to be retained in

her own supervisory position with a different supervisor. The AJ also

found that S1 subjected complainant to a hostile work environment based

on her sex. In so finding, the AJ concluded that the complained-of

harassment was adequately severe or pervasive to be unlawful. The AJ

found no discrimination as to complainant's allegation of a hostile work

environment based on reprisal for prior EEO activity.

The agency's final order rejected the AJ's finding of discrimination on

the bases of sex and disability, and accepted the AJ's finding of no

discrimination as to the hostile environment claim based on reprisal.

On appeal, the agency argues that the AJ's credibility determinations are

not supported by the record. In addition, the agency argues that the AJ

erred in finding that complainant was an individual with a disability,

and that she proved that the agency subjected her to a disability-based

hostile work environment, and failed to accommodate her disability.

As to sex-based harassment, the agency argues that complainant is

not similarly-situated to her male comparator, and that moreover, the

record is devoid of evidence of sex-based animus on the part of S1.

The agency additionally argues that it is unlikely that the same person

who hired complainant (S1) would subsequently discriminate against her.

The agency notes, however, that there likely was a personality conflict

between complainant and S1. The agency requests that the Commission

affirm its final order.

In her response to the agency's appeal, complainant argues that the

agency failed to issue a proper final order, and that the agency's

appeal to the Commission was untimely. Complainant requests that we

reverse the final order, and implement the AJ's decision and order for

remedial action. Initially, we address complainant's Motion for Dismissal

of the agency's appeal. A review of the record indicates that the AJ

sent an incomplete copy (missing several pages) of her bench decision

to the parties on January 10, 2003. By letter dated January 21, 2003,

the AJ sent a complete copy of her bench decision to the agency, noting

that it should replace the first incomplete copy. The agency asserts

that it received the decision on January 28, 2003. On February 28, 2003,

the agency issued a timely final order, and simultaneously filed a notice

of appeal with the Office of Federal of Operations. Complainant's Motion

for Dismissal of Appeal is denied because we find that the agency is in

compliance with 29 C.F.R. � 1614.110(a).

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by

an AJ will be upheld if supported by substantial evidence in the record.

Substantial evidence is defined as �such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.� Universal

Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)

(citation omitted). A finding regarding whether or not discriminatory

intent existed is a factual finding. See Pullman-Standard Co. v. Swint,

456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a

de novo standard of review, whether or not a hearing was held.

Initially, we find that the AJ erred in finding that complainant was

denied a reasonable accommodation. In so finding, we note that the

record indicates that the agency allowed complainant to work from home

from approximately April to November 1998, pursuant to her request.

Additionally, assuming arguendo that complainant is an individual with a

disability within the meaning of the Rehabilitation Act, a request for

a reassignment to a new supervisor does not constitute a request for

reasonable accommodation. See EEOC Enforcement Guidance on Reasonable

Accommodation and Undue Hardship Under the Americans with Disabilities

Act, No. 915.002, Question 33 (rev. Oct. 17, 2002) (�An employer does

not have to provide an employee with a new supervisor as a reasonable

accommodation.�). Therefore, we AFFIRM the agency's final order to the

extent that it found that the agency did not unlawfully deny complainant

a reasonable accommodation.

We now turn to addressing complainant's allegations of retaliatory and

sex-based harassment. First, as to reprisal, it is well-settled that

harassment based on an individual's prior EEO activity is actionable.

Roberts v. Department of Transportation, EEOC Appeal No. 01970727

(September 15, 2000) (citing Ray v. Henderson, 217 F.3d 1234 (9th

Cir. 2000); Drake v. Minnesota Mining & Mfg. Co., 134 F.3d 878, 886

(7th Cir. 1998)). In order to establish a claim of harassment based upon

her prior EEO activity, complainant must show that: (1) she engaged

in prior EEO activity; (2) she was subjected to unwelcome conduct;

(3) the harassment complained of was based her prior EEO activity; (4)

the harassment had the purpose or effect of unreasonably interfering

with her work performance and/or creating an intimidating, hostile,

or offensive work environment; and (5) there is a basis for imputing

liability to the employer. See McCleod v. Social Security Administration,

EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of

Dundee, 682 F.2d 897 (11th Cir. 1982). Here, the record indicates that

complainant engaged in prior EEO activity when, in or about March 1998,

she requested the reasonable accommodation of working from home. It is

also clear from the record that S1 was aware of complainant's prior

EEO activity. We further find that substantial evidence supports a

finding that complainant satisfied all of the remaining criteria, and

that she was the victim of retaliatory harassment as to several of the

afore-mentioned incidents.

As to complainant's claims of sex-based harassment, we note that

it is well-settled that harassment based on an individual's sex

is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57

(1986). In order to establish a claim of harassment under those bases,

the complainant must show that: (1) she belongs to the statutorily

protected classes; (2) she was subjected to unwelcome conduct related to

her membership in those classes; (3) the harassment complained of was

based on sex and/or race; (4) the harassment had the purpose or effect

of unreasonably interfering with her work performance and/or creating an

intimidating, hostile, or offensive work environment; and (5) there is

a basis for imputing liability to the employer. See Henson v. City of

Dundee , 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should

be evaluated from the objective viewpoint of a reasonable person in the

victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems

Inc., EEOC Notice No. 915.002 (March 8, 1994). We find that substantial

evidence of record supports the AJ's finding that complainant satisfied

all of these criteria, and that she was the victim of sex-based harassment

concerning several of the afore-mentioned incidents.

We further find that the sex-based and retaliatory harassment culminated

in a tangible employment action; namely, complainant was reassigned

out of her area to a non-supervisory position that she did not request

or desire.<1> In so finding, we note that the record supports that

complainant requested a new supervisor who would not subject her to

harassment, however, she did not request to leave her area, nor did she

request to be placed in a non-supervisory position. We note additionally

that management did not discuss the reassignment with complainant prior

to sending her the letter of reassignment.

In the context of supervisory liability, the Supreme Court and the

Commission have moved away from the commonly used categories of �quid

pro quo� and hostile work environment harassment, finding it more

useful analytically to distinguish between harassment that results in

a tangible employment action and harassment that creates a hostile

work environment. See Burlington Indus. V. Ellerth, 524 U.S. 742,

760-65 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998);

EEOC Enforcement Guidance: Vicarious Liability for Unlawful Harassment

by Supervisors, EEOC Notice No. 915.002, at 2, n. 7 (June 18, 1999).

In Ellerth and Faragher, supra, the Supreme Court made clear that

employers are subject to vicarious liability for unlawful harassment by

supervisors. The standard of liability set forth in these decisions is

premised on two principles: 1) an employer is responsible for the acts

of its supervisors, and 2) employers should be encouraged to prevent

harassment and employees should be encouraged to avoid or limit the harm

from harassment. In order to accommodate these principles, the Court

held that an employer is always liable for a supervisor's harassment

if it culminates in a tangible employment action. Accordingly, in this

case, the agency is liable for the sex-based and retaliatory harassment

of complainant, which culminated in her reassignment.<2>

We now turn to addressing remedies. On appeal, the agency contends that

there should be no award of compensatory damages since the agency provided

complainant with a reasonable accommodation. The agency also requests

clarification of the AJ's order to pay future medical co-payments.

The agency additionally contends that the order to reassign complainant

to the same position, but to another supervisor, is not reasonable.

Compensatory Damages

In West v. Gibson, 527 U.S. 212 (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 CRA,

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)(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).

The particulars of what relief may be awarded, and what proof is

necessary to obtain that relief, are set forth in detail in Enforcement

Guidance: Compensatory and Punitive Damages Available Under � 102 of

the Civil Rights Act of 1991, EEOC Notice No. 915.002, (July 14, 1992)

(Guidance). 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. Id. at 11-12, 14;

Rivera v. Department of the Navy, EEOC Appeal No. 01934157 (July 22,

1994) req. for recons. den. EEOC Request No. 05940927 (December 11,

1995). The amount awarded should reflect the extent to which the

agency's discriminatory action directly or proximately caused harm to

the complainant and the extent to which other factors may have played

a part. Guidance 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.

In Carle v. Department of the Navy, the Commission explained that evidence

of non-pecuniary damages could include a statement by the complainant

explaining how he or she was affected by the discrimination. EEOC Appeal

No. 01922369 (January 5, 1993). Statements from others, including family

members, friends, and health care providers could address the outward

manifestations of the impact of the discrimination on the complainant.

Id. The complainant could also submit documentation of medical or

psychiatric treatment related to the effects of the discrimination. Id.

Non-pecuniary damages must be limited to the sums necessary to compensate

the injured party for the actual harm and should take into account the

severity of the harm and the length of the time the injured party has

suffered from the harm. Carpenter v. Department of Agriculture, EEOC

Appeal No. 01945652 (July 17, 1995).

Compensatory damages may be awarded for the past pecuniary losses,

future pecuniary losses, and non-pecuniary losses which are directly

or proximately caused by the agency's discriminatory conduct. Guidance

at 8. Pecuniary losses are out-of-pocket expenses that are incurred as a

result of the employer's unlawful action, including job-hunting expenses,

moving expenses, medical expenses, psychiatric expenses, physical

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

Past pecuniary losses are the pecuniary losses that are incurred prior

to the resolution of a complaint via a finding of discrimination, an

offer of full relief, or a voluntary settlement. Id. at 8-9.

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. Note, however, that compensatory

damage awards only became available to complainants after the effective

date of the CRA of 1991, November 21, 1991.

Here, complainant requests $185,000.00 in non-pecuniary damages, and

$4,910.41 for past co-payments for medication, and $168,000.00 for future

co-payments for medication. We begin by addressing non-pecuniary damages.

Complainant's rheumatologist (R1) testified that prior to the agency's

discriminatory conduct, complainant's rheumatoid arthritis had been

�rocking along. It was still inflamed, but it was easier to control.�

R1 stated that complainant's rheumatoid arthritis and lupus worsened

substantially as a result of the agency's discriminatory conduct.

R1 explained that these auto-immune diseases are directly affected by

stress. R1 further asserted that complainant suffered from depression

and anxiety due to the worsening of her conditions. R1 additionally

stated that complainant will need to receive aggressive treatment

(i.e. chemotherapy) indefinitely, and possibly for the remainder of her

life. R1 additionally stated that due to the worsening of complainant's

condition, complainant would certainly not be able to have children

with her husband. Complainant's husband (H1) also provided testimony

that there was a marked difference in complainant's life as a result

of the discriminatory harassment. H1 testified that complainant

became emotionally destroyed; she did not want to go anywhere, her

self-confidence was undermined, and her relationship with her stepson

was affected. Additionally, H1 noted that due to the severity of her

arthritis, complainant needed help dressing herself and buttoning her

clothes.

After a thorough review of the record, we find that the AJ's conclusion

that complainant's conditions were substantially exacerbated due

to the discrimination, to be supported by substantial evidence

of record. We agree with the AJ that an award of $125,000.00 is

appropriate to compensate complainant for her pain and suffering

during the relevant time period. We point out that non-pecuniary

compensatory damages are designed to remedy a harm and not to punish

the agency for its discriminatory actions. See Memphis Community

School Dist. v. Stachura, 477 U.S. 299, 311-12 (1986) (stating that

compensatory damages determination must be based on the actual harm

sustained and not the facts of the underlying case). The Commission

notes that this award is not �monstrously excessive� standing alone,

is not the product of passion or prejudice, and is consistent with

the amount awarded in similar cases. See Leatherman v. Department

of the Navy, EEOC Appeal No. 01A12222 (December 14, 2001)($100,000.00

awarded where discrimination caused complainant to suffer from suicidal

thoughts, inability to sleep, chest pains, migraine headaches, anxiety,

depression, and she had to be hospitalized on two occasions); Santiago

v. Department of the Army, EEOC Appeal No. 019955684 (October 14, 1998)

($125,000.00 awarded where sex and age-based discrimination by supervisor

caused complainant depression and other emotional and mental disorders,

severe chest and stomach pains, digestive problems, and incidents of

shortness of breath); Cook v. United States Postal Service, EEOC Appeal

NO. 01950027 (July 17, 1998)($130,000.00 awarded where hostile work

environment caused employee to suffer from Atypical Paranoid Disorder).

There is no award of future medical co-pay amounts or future sick leave,

as these claims are highly speculative and inadequately supported by

medical documentation.<3>

Therefore, after a careful review of the record, including arguments and

evidence not specifically discussed in this decision, the Commission

affirms the portion of the agency's final order finding no denial of

reasonable accommodation, but reverses the portion of the decision

finding no retaliatory or sex-based harassment, and remands the matter

to the agency to take corrective action in accordance with this decision

and the Order below.

ORDER

Within sixty (60) days of the date this decision becomes final and to

the extent it has not already done so, the agency is ordered as follows:

Offer complainant reassignment to her prior position as an Employee

Relations Specialist, GS-671-12. Complainant is not to be in the

chain of command of any individual who was found in this case to have

discriminated against complainant;

Pay complainant $125,000.00 in non-pecuniary damages;

Pay complainant co-payments in the amount of $4,910.01 for medication

and services, to the extent that they were purchased due to complainant's

severe depression and exacerbated condition, between 1997 and 2002.

Restore 372 sick leave hours if complainant can show it is directly

attributable the agency's discriminatory actions;

Provide EEO training to the individual(s) found to have discriminated

against complainant, regarding their obligations pursuant to Title VII

and the Rehabilitation Act, with special emphasis on the provisions

regarding retaliation and harassment.

Consider taking appropriate disciplinary action against the responsible

management officials. The Commission does not consider training to

be disciplinary action. The agency shall report its decision to the

compliance officer. If the agency decides to take disciplinary action,

it shall identify the action taken. If the agency decides not to take

disciplinary action, 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's employ, the agency shall furnish documentation

of their departure date(s).

Pay attorney's fees in the amount of $52,740.00 and costs in the amount

of $2,251.45.

Post the attached notice on all employee bulletin boards indicating that

it has been found to have discriminated against an employee in violation

of the Commission's regulations and Title VII and the Rehabilitation Act.

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 (K0501)

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 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 (M0701)

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 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 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 (S0900)

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 (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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

July 21, 2004

__________________

Date

1 We are not persuaded by the

evidence of record that the �excellent� rather than an �outstanding�

rating on her 1997 EPMS was unlawfully motivated.

2 Based on our findings that complainant was subjected to harassment

on the bases of sex and reprisal, we need not address complainant's

allegations of disability-based harassment, as complainant would not be

entitled to any further relief.

3 We will not disturb the AJ's order that the agency pay complainant

$4,910.01 as reimbursement for past medical co-payment amounts, because

the agency has not specifically disputed this award on appeal. For the

same reason, we also will not disturb the AJ's order to restore 372 sick

leave hours if complainant can show they are directly attributable

the agency's discriminatory actions. On appeal, the agency asks

that no attorney's fees or costs be awarded in the event that the

Commission finds no discrimination, however, the agency fails to

otherwise specifically dispute the award of $52,740.00 in attorney's

fees or $2,251.45 in costs, in the event that we found discrimination.

Therefore, we will not disturb the award of attorney's fees and costs.

There is no award of back pay or front pay as there is no finding that

a promotion was denied to complainant as a result of the discrimination.