Sandra J. Hyde,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120073964
Agency No. P20000071
DECISION
Complainant timely initiated an appeal from the agency's final decision,
dated August 21, 2007, concerning her claim for damages, which stems from
her original complaint alleging employment discrimination in violation
of Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. § 2000e et seq. The appeal is deemed timely and is accepted
pursuant to 29 C.F.R. § 1614.405(a).
BACKGROUND
In the underlying complaint, complainant alleged that she was subjected
to a hostile work environment on the basis of sex. At the conclusion of
the investigation, complainant was provided with a copy of the report
of investigation and notice of her right to request a hearing before
an EEOC Administrative Judge (AJ). When complainant did not request a
hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the
agency issued a final decision (FAD1) pursuant to 29 C.F.R. § 1614.110.
FAD1 found that complainant was subjected to a hostile work environment
on the basis of sex. FAD1 found that from March 2, 1999 to September 10,
1999, complainant was subjected to sexually offensive comments, gestures,
touching, and grabbing by her first-level supervisor (S1) and second-level
supervisor (S2). FAD1 found that the evidence supported complainant's
claims that S2 consistently made comments about performing sexual acts,
made inappropriate references to complainant's body, performed several
sexually suggestive acts in the presence of complainant, and on one
occasion, attempted to push complainant's head to his stomach area.
Further, FAD1 found that the record supported that S1 routinely grabbed
his crotch and made sexually offensive comments to complainant and
other employees. FAD1 found that the sexual harassment occurred nearly
every day for approximately six months. As a result, FAD1 found that
complainant had been subjected to a sexually hostile work environment
and directed complainant to submit a request for compensatory damages
and attorney's fees. When both parties could not come to agreement
on appropriate relief, the agency issued a final agency decision with
respect to compensatory damages (FAD2) on August 21, 2007.
Leave Reinstatement/Reimbursement and Early Retirement
Complainant requested an award of $4,334.83 to cover damages from
taking leave without pay when she was forced to take time off due to
the stress caused by a sexually hostile work environment. Additionally,
complainant requested restoration of 226.95 hours of leave. FAD2 found
that complainant had not submitted any information regarding her use
of leave without pay. FAD2 found that complainant was therefore not
entitled to reimbursement for leave without pay. As to restoration of
sick and annual leave, FAD2 found that complainant submitted handwritten
documents showing her leave taken from 1999-2006. FAD2 found that only
the documents from 2000-2001 identified some leave taken for "stress."
FAD2 found that in light of the lack of specific evidence and that
complainant only worked with the responsible management officials
until 2001, complainant was therefore entitled to restoration of 61.5
hours of sick leave and 8 hours of annual leave. Further, FAD2 denied
complainant's request for early retirement as complainant failed to show
that early retirement would make her whole.
Pecuniary Damages
Complainant requested reimbursement of $2,347 for medical bills associated
with an on-the-job injury when a shelf fell on her. Additionally,
complainant requested $28,190.19 as reimbursement for medical expenses
incurred when she underwent gastric bypass surgery. Complainant claimed
that the agency's harassment caused her to develop an eating disorder
which led to "rapid weight gain." FAD2 found that complainant failed
to show that the sexual harassment complainant suffered was connected
to the on-the-job accident and therefore denied complainant's request
for damages related to the accident. Additionally, FAD2 found that the
evidence submitted by complainant failed to show that complainant suffered
an eating disorder and medically required gastric bypass surgery because
of sexual harassment. FAD2 therefore denied complainant's request for
damages related to her gastric bypass surgery.
Non-pecuniary Damages
As to non-pecuniary damages, complainant requested $300,000 to
compensate her for emotional, physical, and psychological injuries due
to "extreme emotional distress and stress related disorders" caused by
sexual harassment. Complainant claimed that she suffered nightmares,
marital problems, extreme stress, depression, and an eating disorder
that caused excessive and rapid weight gain. FAD2 found that taking
into account awards in comparable cases, the severity and duration of
the harm, and the evidence offered in support of the claim complainant
was entitled to a non-pecuniary damages award of $8,000.
Attorney's Fees and Costs
Complainant requested an award for attorney's fees in the amount
of $8,691.33 and $1,629.08 in costs. As to attorney's fees, FAD2
found that complainant did not submit the proper documentary evidence
supporting her claim for attorney's fees and costs. FAD2 found that many
of complainant's attorney's time entries were vague and included work
performed that was unrelated to complainant's Title VII claim. FAD2 found
that many entries state "phone call" or "long distance telephone call,"
"memo from staff," "staff instructions," "review of grievances," "review
of letters," and "review of emails" without providing any information
as to the subject matter of these entries. Additionally, FAD2 found
that for the time period from December 18, 2006 to March 30, 2007, the
time records provide little information about the subject matter of the
work done by the attorney or his staff. Further FAD2 found that the
time records contained redundant entries where time spent or work done
appears unnecessary. FAD2 then determined that based on the entries
that did provide adequate detail of the subject matter and that appeared
to be related to complainant's EEO matter, complainant was entitled to
an additional $937.95 for work done by her attorney at $125/hour and
$490.80 for work done by his paralegal at $45/hour. Thus, FAD2 added
this $1,933.55 to the $4,258.18 originally offered by the agency and
found that complainant was entitled to $6,191.73 in attorney's fees.
As to costs, FAD2 found that the only documentation supporting
complainant's request for costs was an invoice from a medical facility for
providing copies of complainant's medical records at a cost of $43.13.
As a result, FAD2 awarded complainant $6,191.73 in attorney's fees and
$43.13 in costs.
CONTENTIONS ON APPEAL
On appeal, complainant asserts that the record establishes that there
is sufficient evidence to justify an award of $300,000 in non-pecuniary
damages.1 Complainant maintains that all of the statements regarding
complainant's physical and emotional reactions to the hostile work
environment were unrebutted, yet FAD2 found that there was not
a sufficient "definitive statement" that the harassment caused an
eating disorder. Complainant states that the record supports a causal
connection between the harassment and the need for the surgical procedure
and therefore, all costs related to the procedure should be granted.
Further, complainant maintains that FAD2 misapplied comparative cases
making the final award unjust and insufficient. Finally, as to attorney's
fees and costs, complainant claims that the documentation submitted was
sufficient to show that the work was performed directly on complainant's
case and to do more could breach attorney-client confidentiality.2
In response, the agency states that complainant has not shown a nexus
between the harassment that occurred in 1999 and the July 2003 gastric
bypass surgery. Further, the agency claims that complainant's medical
documentation contradicts her contention that she needed gastric bypass
surgery due to a stress-related eating disorder. The agency maintains
that the record shows that complainant's physical injuries were related
solely to her on-the-job accident and that several of her emotional
injuries were related to her obesity and gastric bypass surgery.
The agency therefore argues that considering the lack of relevant
medical evidence that complainant suffered an eating disorder or that any
medical treatment was linked to the agency's discriminatory harassment,
the award of $8,000 in non-pecuniary damages was appropriate. Finally,
the agency contends that the amount awarded in attorney's fees and costs
was appropriate considering the documentation provided.
ANALYSIS AND FINDINGS
Our task is to resolve this dispute over the appropriate type and amount
of relief due complainant because of the discrimination she suffered at
the hands of the agency. In so doing, we review the propriety of the
remedies awarded pursuant to the relief ordered de novo (or "anew").
See 29 C.F.R. § 1614.405(a). This means that in deciding this case,
we must "examine the record without regard to the factual and legal
determinations" of the agency, "review the documents, statements, and
testimony of record, including any timely and relevant submissions of
the parties," and then issue our decision "based on the Commission's
own assessment of the record and ... interpretation of the law."
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(rev. Nov. 9, 1999) (EEO MD-110), at 9-15. Accordingly, we have carefully
reviewed the entire record before us in our attempt to discern whether
a preponderance of the evidence warrants a modification of the agency's
remedy award. See 29 C.F.R. § 1614.405(a). We conclude that it does.
As to the issue of compensatory damages, we note that in West v. Gibson,
119 S.Ct. 1906 (1999), the Supreme Court held that Congress afforded
the Commission the authority to award compensatory damages in the
administrative process. Section 102(a) of the Civil Rights Act of 1991
(the CRA 1991), codified as 42 U.S.C. § 1981a, authorizes an award of
compensatory damages as part of the "make whole" relief for intentional
discrimination in violation of Title VII of the Civil Rights Act of
1964, as amended. Section 1981a(b)(2) indicates that compensatory
damages do not include back pay, interest on back pay, or any other
type of equitable relief authorized by Title VII. Section 1981a(b)(3)
limits the total amount of compensatory damages that may be awarded to
each complaining party for future pecuniary losses, emotional pain,
suffering, inconvenience, mental anguish, loss of enjoyment of life,
and other non-pecuniary losses, according to the number of persons
employed by the respondent employer. The limit for an employer with
more than 500 employees, such as the agency herein, is $300,000.00.
42 U.S.C. § 1981a(b)(3)(D).
If a complainant alleges that she is entitled to compensatory damages
and the agency or Commission enters a finding of discrimination, the
complainant is given an opportunity to submit evidence establishing
her claim. To receive an award of compensatory damages, a complainant
must demonstrate that she has been harmed as a result of the agency's
discriminatory action; the extent, nature, and severity of the harm; and
the duration or expected duration of the harm. Rivera v. Department of
the Navy, EEOC Appeal No. 01934157 (July 22, 1994), req. for recons. den.,
EEOC Request No. 05940927 (December 11, 1995); Compensatory and Punitive
Damages Available Under Section 102 of the Civil Rights Act of 1991,
EEOC Notice No. 915.002 (July 14, 1992), at 11-12, 14.
A compensatory damages award should fully compensate a complainant for
the harm caused by the agency's discriminatory action even if the harm
is intangible. Id. at 13. Thus, a compensatory damages award should
reimburse a complainant for proven pecuniary losses, future pecuniary
losses, and non-pecuniary losses. Non-pecuniary damages constitute
the sums necessary to compensate the injured party for actual harm,
even where the harm is intangible. Carter v. Duncan-Higgins, Ltd.,
727 F.2d 1225 (D.C. Cir. 1984). The award should take into account
the severity and duration of the harm. Carpenter v. Department of
Agriculture, EEOC Appeal No. 01945652 (July 17, 1995). Non-pecuniary
and future pecuniary damages are limited to an amount of $300,000.00.
The Commission notes that for a proper award of non-pecuniary damages,
the amount of the award should not be "monstrously excessive" standing
alone, should not be the product of passion or prejudice, and should be
consistent with the amount awarded in similar cases. See Ward-Jenkins
v. Department of the Interior, EEOC Appeal No. 01961483 (March 4, 1999)
(citing Cygnar v. City of Chicago, 865 F. 2d 827, 848 (7th Cir. 1989)).
Pecuniary Damages
Pecuniary damages may be awarded for losses that are directly or
proximately caused by the agency's discriminatory conduct. See EEOC's
Enforcement Guidance: Compensatory and Punitive Damages Available Under
Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002
at 8 (July 14, 1992) ("Guidance"). Pecuniary losses are out-of-pocket
expenses incurred as a result of the agency's unlawful action, including
job-hunting expenses, moving expenses, psychiatric expenses, physical
therapy expenses, and other quantifiable out-of-pocket expenses. Id.
For claims seeking pecuniary damages, a complaint should proffer objective
evidence documenting out-of-pocket expenses for all actual costs and
an explanation of the expense, i.e., medical and psychological bills,
other costs associated with the injury caused by the agency's actions,
and an explanation for the expenditure. Id. at 9.
Upon review, we agree with the agency and find that complainant has
failed to prove her entitlement to pecuniary damages. Complainant failed
to establish a nexus between her medical expenses and the agency's
discriminatory action. Complainant requested $2,347.00 for medical
bills incurred for physical injuries when an unstable shelf fell on her.
We find that this on-the-job injury is unrelated to the harassment
complainant suffered. Additionally, complainant requested $27,640.19
in damages related to her gastric bypass surgery. Complainant claims
that she developed an eating disorder as a result of the agency's
harassment and suffered rapid weight gain. Complainant has presented
no evidence showing that she developed an eating disorder due to the
agency's harassment of her. None of the medical documentation provided
by complainant indicates that complainant developed an eating disorder.
Notably, neither complainant, nor complainant's husband mentioned anything
about an eating disorder in their affidavits in support of damages.
We find that complainant has failed to show a causal connection between
the agency's harassment of her and her gastric bypass surgery. As such,
we find that complainant is not entitled to pecuniary damages.
Non-pecuniary Damages
There is no precise formula for determining the amount of damages for
non-pecuniary losses, except that the award should reflect the nature and
severity of the harm and the duration or expected duration of the harm.
Loving v. Department of the Treasury, EEOC Appeal No. 01955789 (August 29,
1997); Rountree v. Department of Agriculture, EEOC Appeal No. 01941906
(July 7, 1995). We note that for a proper award of non-pecuniary damages,
the amount of the award should not be "monstrously" excessive standing
alone, should not be the product of passion or prejudice, and should be
consistent with the amount awarded in similar cases. See Ward-Jenkins
v. Department of the Interior, EEOC Appeal No. 01961483 (March 4, 1999).
We note that evidence from a health care provider or other expert is
not a mandatory prerequisite for recovery of compensatory damages for
emotional harm. See Lawrence v. United States Postal Service, EEOC
Appeal No. 01952288 (April 18, 1996) (citing Carle v. Department of the
Navy, EEOC Appeal No. 01922369 (January 5, 1993)). Objective evidence
of compensatory damages can include statements from the complainant
concerning his or her emotional pain or suffering, inconvenience, mental
anguish, loss of enjoyment of life, injury to professional standing,
injury to character or reputation, injury to credit standing, loss
of health, and any other non-pecuniary losses that are incurred as
a result of the discriminatory conduct. Id. Statements from others,
including family members, friends, health care providers, other counselors
(including clergy) could address the outward manifestations or physical
consequences of emotional distress, including sleeplessness, anxiety,
stress, depression, marital strain, humiliation, emotional distress,
loss of self-esteem, excessive fatigue, or a nervous breakdown. Id.
Complainant's own testimony, along with the circumstances of a particular
case, can suffice to sustain her burden in this regard. Id. The more
inherently degrading or humiliating the defendant's action is, the more
reasonable it is to infer that a person would suffer humiliation or
distress from that action. Id. The absence of supporting evidence,
however, may affect the amount of damages appropriate in specific
cases. Id.
In the instant case, complainant claims to have suffered emotional and
physical suffering due to the agency's harassment. Complainant's husband
states that after the harassment began, complainant rejected any contact
with him and others. Comp.'s Reply to Agency's Response to Comp.'s
Request for Damages, Ex. 2. Further, complainant's husband claims that
their relationship deteriorated so much that at one point at he moved
out of the house because they had stopped talking. Id. Complainant's
co-worker (CW1) asserts that she could see the stress taking its toll on
complainant. Comp.'s Reply, Ex. 4. A second co-worker (CW2) contends
that complainant would come to her crying and complaining about the
harassment on virtually a daily basis. Comp.'s Reply, Ex. 3. CW2 adds
that complainant was nervous all the time because of the harassment. Id.
In determining compensatory damages, the Commission strives to make
damage awards for emotional harm consistent with awards in similar cases.
The Commission finds the $8,000 awarded by the agency to be inadequate.
Thus, based on the record, we find that complainant is entitled to
an award of $35,000 in light of the emotional distress suffered.
This amount takes into account the nature of the discriminatory
actions and the severity of the harm suffered, and is consistent with
prior Commission precedent. See Campbell v. Department of Justice,
EEOC Appeal No. 01A40538 (September 14, 2005) ($33,000 awarded where
complainant suffered stress, excessive weight gain from nervous eating,
insomnia, and nightmares due to supervisor's sexual harassment);
Christian v. Department of Veterans Affairs, EEOC Appeal No. 01996342,
(September 7, 2001) ($30,000 awarded where complainant was continuously
sexually harassed by a co-worker for a period of six years, no medical
evidence produced); Joiner v. Social Security Administration, EEOC Appeal
No. 07A50049 (February 3, 2006) ($30,000 awarded where complainant
suffered sadness, anger and withdrew from normal social activities
and relationships as a result of agency's harassment). We note that
this sum is meant to compensate complainant for the emotional distress
she suffered, which was caused by the agency's discriminatory actions.
Finally, this amount meets the goals of not being motivated by passion or
prejudice, not being "monstrously excessive" standing alone, and being
consistent with the amounts awarded in similar cases. See Ward-Jenkins
v. Department of Interior, EEOC Appeal No. 01961483 (March 4, 1999)
(citing Cygnar v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989)).
Attorney's Fees and Costs
Title VII and the Commission's regulations authorize the award of
reasonable attorney's fees and costs to a prevailing complainant. 29
C.F.R. § 1614.501(e); see also EEOC's Management Directive 110 (MD-110)
(November 9, 1999) Chapter 11. Fee awards are typically calculated by
multiplying the number of hours reasonably expended times a reasonable
hourly rate, an amount also known as a lodestar. See 29 C.F.R. §
1614.501(e)(ii)(B); Blum v. Stenson, 465 U.S. 886 (1984); Hensley
v. Eckerhart, 461 U.S. 424 (1983).
All hours reasonably spent in processing the complaint are compensable,
but the number of hours should not include excessive, redundant or
otherwise unnecessary hours. MD-110 at 11-15. A reasonable hourly
rate is based on prevailing market rates in the relevant community
for attorneys of similar experience in similar cases. MD-110 at 11-6.
An application for attorney's fees must include a verified statement of
attorney's fees accompanied by an affidavit executed by the attorney of
record itemizing the attorney's charges for legal services. MD-110 at
11-9. While the attorney is not required to record in great detail
the manner in which each minute of his time was expended, the attorney
does have the burden of identifying the subject matters on which he
spent his time by submitting sufficiently detailed and contemporaneous
time records to ensure that the time spent was accurately recorded.
See Spencer v. Department of the Treasury, EEOC Appeal No. 07A10035
(May 6, 2003). The attorney requesting the fee award has the burden
of proving, by specific evidence, entitlement to the requested fees and
costs. National Ass'n of Concerned Veterans v. Department of Defense,
675 F.2d 1319 (D.C. Cir. 1982); Koren v. United States Postal Service,
EEOC Request No. 05A20843 (February 18, 2003).
Complainant requests $8,691.33 in attorney's fees and $1,629.08 in costs.
Complainant submitted a detailed fee petition explaining the time expended
on complainant's case from November 4, 1999 through March 30, 2007.
The agency identified several charges that appear vague, redundant,
or excessive. We find that the majority of the hours listed in the
fee petition are sufficiently documented to support a determination
that the nature and purpose of the so-described activities of counsel
were reasonable. We do, however, agree with the agency that some of
the entries are vague, duplicitous, or excessive. For example, an
entry dated December 9, 1999 merely states "Review of Documentation."
Comp.'s Request for Damages, Ex. 5. Further, entries related to
CW1's affidavit dated February 22 and February 23, 2007 appear to be
duplicitous and excessive without an explanation as to their necessity.
Comp.'s Request for Damages, Ex. 5. Given the number of billing entries
that are not sufficiently detailed or appear inappropriate, we conclude
that an across-the-board reduction of hours by 10% is reasonable.
Accordingly, we find that complainant is entitled to reimbursement of
attorney's fees in the amount of $7,822.20 (90% of $8,691.33).
With respect to complainant's claim for reimbursement of costs, we find
that the agency properly denied reimbursement of various costs incurred
by complainant, because the record is devoid of receipts, bills, or
other documentary evidence corroborating the requested amounts in the fee
petition and request for costs. The Commission requires that a petition
seeking reimbursement of costs be supported by detailed documentation,
including receipts. See EEOC Management Directive-110 (MD-110), as
revised November 9, 1999, Chapter 11 (stating that a verified statement
of fees and costs shall include documentation of costs); Drummond-Irving
v. Department of Homeland Security, EEOC Appeal No. 0720060051 (May 17,
2007) (citing Canady v. Department of the Army, EEOC Request No. 05890226
(December 27, 1989)). The record is devoid of any documentation to support
the attorney's expenses apart from an invoice from a medical facility for
copies of complainant's medical records at a cost of $43.13. Therefore,
we find that the complainant is only entitled to $43.13 in costs.
CONCLUSION
We MODIFY the agency's final decision and direct the agency to comply
with the Order below which adds the remedy of the consideration of
discipline and EEO training of responsible agency officials.
ORDER
The agency shall take the following remedial actions to the extent it
has not already provided the following relief:
1. Within 30 days from the date this decision becomes final, to the
extent that it has not already done so, restore to complainant 61.5
hours of sick leave and 8 hours of annual leave;
2. Within 30 days from the date this decision becomes final, the agency
shall pay complainant $35,000 in non-pecuniary, compensatory damages;
3. Within 30 days from the date this decision becomes final, the agency
shall provide complainant with an award of reasonable attorney's fees
in the amount of $7,822.20 and $43.13 in costs;
4. Within 180 days of the date this decision becomes final, the agency
shall, if it has not already done so, provide sufficient EEO training to
complainant's first-level supervisor (the Food Service Administrator),
complainant's second-level supervisor (the Assistant Food Service
Administrator), and any other officials in complainant's chain of
command at the United States Penitentiary in Terre Haute, Indiana that
the agency determines need such training, so that such officials become
fully cognizant of the obligations and duties imposed by Title VII,
with an emphasis on sexual harassment; and
5. Within 60 days of the date this decision becomes final, the agency
shall consider taking appropriate disciplinary action against all
responsible management officials if still employed by the agency including
complainant's first-level supervisor (the Food Service Administrator),
complainant's second-level supervisor (the Assistant Food Service
Administrator), and any other officials in complainant's chain of
command at the United States Penitentiary in Terre Haute, Indiana that
the agency's determines may warrant disciplinary action. The agency
shall report its decision to the Compliance Officer referenced herein.
If the agency decides to take disciplinary actions it shall identify the
actions taken. If the agency decides not to take disciplinary actions, it
shall set forth the reason(s) for its decision not to impose discipline.
If any of the responsible management officials have left the agency,
then the agency shall furnish documentation of the departure date(s).
POSTING ORDER (G0900)
The agency is ordered to post at its United States Penitentiary facility
in Terre Haute, Indiana copies of the attached notice. Copies of the
notice, after being signed by the agency's duly authorized representative,
shall be posted by the agency within thirty (30) calendar days of the
date this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. § 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. § 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington,
DC 20013. The agency's report must contain supporting documentation,
and the agency must send a copy of all submissions to the complainant.
If the agency does not comply with the Commission's order, the complainant
may petition the Commission for enforcement of the order. 29 C.F.R. §
1614.503(a). The complainant also has the right to file a civil action
to enforce compliance with the Commission's order prior to or following
an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407,
1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled "Right to File A Civil
Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. § 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013. In the absence of a legible postmark, the request
to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period.
See 29 C.F.R. § 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0408)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as the
defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1008)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time
limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 24, 2009______
Date
1 We note that throughout her appeal, complainant refers to the
Administrative Judge. This case was not tried before an Administrative
Judge; rather, the agency issued final agency decisions on both the
merits of complainant's discrimination claim and damages.
2 We also note that, on appeal before the Commission, complainant does not
present any arguments concerning FAD2's award of sick and annual leave
and denial of early retirement and reimbursement of leave without pay.
Accordingly, we decline to address those matters in this decision.
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0120073964
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120073964