This EEOC claim is a good example of how the federal agency lawyers attacked the claim in order to reduce the award, claiming pre-existing conditions.
Upendra Patel v. Department of the Army
01980279
09-26-01
.
Upendra Patel,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01980279
Agency No. 93050220
DECISION
INTRODUCTION
On October 9, 1997, Upendra Patel (complainant) initiated an appeal
to the Equal Employment Opportunity Commission (EEOC or Commission)
from the final decision (FAD) of the Department of the Army (agency),
concerning his complaint of unlawful 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 Commission hereby accepts
the appeal in accordance with 29 C.F.R. § 1614.405.
ISSUE PRESENTED
The issue on appeal is whether the agency properly determined that
complainant was entitled to payment of $1,000.00 in non-pecuniary damages.
BACKGROUND
Complainant filed a formal complaint on March 11, 1993, alleging discrimination on the basis of national origin (Indian) when he was not selected for a temporary promotion to a GS-13 position, and he was not selected on several occasions for the Product Assurance and Test Directorate Executive Training Program (issue 1). Complainant also alleged that he had been subjected to reprisal discrimination when, after he sought EEO counseling, his third level supervisor called him in and asked him to withdraw his EEO complaint (issue 2).<1>
In a FAD dated May 20, 1994, the agency found that complainant had been
subjected to discrimination based on his national origin when he was not
selected for the Executive Training Program. However, the agency found
that complainant had not been subjected to reprisal because “he did not
show that he was adversely affected by the manager’s conduct.” As relief,
the agency stated that complainant would be enrolled in the next Executive
Training Program and would be reimbursed his attorney’s fees and costs.
This decision did not notify complainant of the procedures for filing
an appeal with the Commission.
On August 24, 1994, complainant filed an appeal with the Commission
challenging the agency’s finding of no discrimination with respect to
reprisal and its failure to award compensatory damages. In EEOC Appeal
No. 01945283 (March 21, 1996), the Commission reversed the agency’s final
decision insofar as it found no reprisal. The Commission further ordered
the agency to conduct a supplemental investigation into the question of
whether complainant should be awarded compensatory damages.
Medical evidence required to prove compensatory damages
In complainant’s brief in support of compensatory damages, complainant claimed that he was entitled to past pecuniary losses of $49,564.72 to include medical expenses and annual and sick leave, future pecuniary
losses of $571,410.39, and non-pecuniary losses of $500,000. He claimed that he suffered from depression, suicidal thoughts, sleeplessness, nightmares, reliving the trauma, chest pains and palpitations. He further claimed that the events affected his family life because he was still constantly thinking about the discrimination and reprisal, and as a result was withdrawn. According to complainant, his injuries began at the time of the discriminatory incident, continued through to the time when he submitted his request to the agency for damages (August 1996), and would continue indefinitely.
Final Agency Decision (FAD) reduced the complainants reward, based on medical evidence of pre-existing conditions in employees file and his own affidavits.
The agency issued a second FAD on September 24, 1997, finding that complainant was entitled to $1,000.00 in non-pecuniary damages. The agency observed that complainant had filed a second EEO complaint regarding an August 1993 performance appraisal which was lower than he expected. It found that the receipt of the performance appraisal in August 1993 was an intervening cause that terminated the agency’s liability for damages. The agency further noted that, prior to the discriminatory events, complainant had a history of a peptic ulcer and mucous colitis, as well as recurrent back pains secondary to arthritis and spondylosis. The agency determined that it was only responsible for the two incidents where discrimination was found, and only the actual losses and expenses he suffered as a result of those two incidents. The agency determined that, based on the evidence and affidavits in the record, complainant had failed to establish a link between the discriminatory incident and his suffering. It concluded that the complainant was not entitled to an award of past or future pecuniary damages, and awarded $1,000 for non-pecuniary damages for “minor emotional distress during the period from January 1993 to August 1993.”
Who does the federal agency use as a medical expert to dispute prior medical conditions are part of the same medical conditions and symptoms cited in complainants eeoc discrimination complaint?
This appeal followed. On appeal, the complainant argues that the agency incorrectly shifted all of his expenses and pain to the second EEO complaint, noting that the agency cites no medical evidence for its conclusion. He also disputes the agency’s conclusion that the peptic ulcer, mucous colitis, recurrent back pains secondary to arthritis and spondylosis are causative of his current heart and psychiatric problems. Complainant states that he continues to be unable to sleep, he has nightmares and suicidal thoughts, his relationship with his wife and children has suffered, and he no longer participates in the activities he once enjoyed. He further requests that his damages be adjusted to reflect his decreased leave balance and increased medical expenses since the FAD.
ANALYSIS AND FINDINGS
Compensatory Damages
A. Legal Standards for an Award of Compensatory Damages
Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant who establishes his or her claim of unlawful discrimination may receive, in addition to equitable remedies, compensatory damages for past and future pecuniary losses (i.e., out of pocket expenses) and non-pecuniary losses (e.g., pain and suffering, mental anguish). 42 U.S.C. 1981a(b)(3). For an employer with more than 500 employees, such as the agency, the limit of liability for future pecuniary and non-pecuniary damages is $300,000. Id. The particulars of what relief may be awarded, and what proof is necessary to obtain that relief, are set forth in detail in EEOC Notice No. N 915.002, Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991 (July 14, 1992). 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). 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. EEOC Notice No. N 915.002 at 11-12. The amount of non-pecuniary damages should also reflect the nature and severity of the harm to the complainant, and the duration or expected duration of the harm. Id. at 14. In Carle v. Department of the Navy, the Commission explained that “objective 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. The Commission applies the principle that “a tortfeasor takes its victims as it finds them.” Wallis v. United States Postal Service, EEOC Appeal No. 01950510 (November 13, 1995) (quoting Williamson v. Handy Button Machine Co., 817 F.2d 1290, 1295 (7th Cir. 1987)). However, the Commission also applies two exceptions to this general rule. First, when a complainant has a pre-existing condition, the agency is liable only for the additional harm or aggravation caused by the discrimination. Second, if the complainant’s pre-existing condition inevitably would have worsened, the agency is entitled to a reduction in damages reflecting the extent to which the condition would have worsened even absent the discrimination; the burden of proof is on the agency to establish the extent of this entitlement. Wallis, EEOC Appeal No. 01950510 (citing Maurer v. United States, 668 F.2d 98 (2d Cir. 1981)); Finlay v. United States Postal Service, EEOC Appeal No. 01942985 (April 29, 1997). The Commission notes, therefore, that complainant is entitled to recover damages only for injury, or additional injury, caused by the discrimination. Terrell v. Department of Housing and Urban Development, EEOC Appeal No. 01961030 (October 25, 1996); EEOC Notice No. N 915.002 at 12.
B. Nexus Between Alleged Harm and Discrimination
Complainant averred that the effect on him of the trauma of the two events manifested itself physically and emotionally. He stated that, after the events of issue 2, he could not sleep, experienced nightmares, and in the days that followed, became more sad and hopeless, constantly thinking about his case. He further averred that he had problems concentrating at work and lost interest in “happier things in life” like playing with his kids, going on family outings and being intimate with his wife. Complainant averred that he had suicidal thoughts on the way to work, and on September 10, 1993, he experienced chest pains and was hospitalized. He stated that he was diagnosed with Major Depression, and his clinical psychiatrist (Physician-1) recommended that he be transferred from the section where the discrimination had taken place. Complainant stated that the transfer helped with the thoughts of suicide, however, the sleeplessness, sadness, nightmares, reliving traumas, chest pains and palpitations continue. He notes that he feels that he has lost his friendship with his co-workers, and he is unable to advance his career no matter how well he performs his job. Complainant’s wife averred that, after February 1993, complainant withdrew from her and the family, took no interest in their then new-born daughter, and had no interest in interacting with their two children. She stated that complainant had been a very attentive father prior to the events of February 1993, but he now will not discuss anything except his difficulties at work. Furthermore, she explained that she, complainant and their two children live with complainant’s parents because the money they had saved for a down payment on a house was used for attorney’s fees and medical expenses. She further stated that complainant says his career is finished and fears losing his job. She described complainant as exhausted, and she stated that he complained of severe headaches and stress and would cry at night because of the discrimination. She described how complainant would wake up in the middle of the night complaining of chest pains and how he would have nightmares about the discrimination and reprisal. She further averred that she and complainant are rarely intimate even now. She stated that “the discrimination and reprisal events of February 1993 have robbed [her of her] husband, and [her and her] children of a normal life.” Complainant also provided two affidavits from long-time friends. Both friends stated that the frequency of their gatherings with complainant has decreased significantly since the events of February 1993. In addition, they both averred that complainant’s primary discussion topic at outings he did attend was his EEO complaint. They stated that he stopped participating in the activities he once enjoyed. One of the friends, who described complainant as competitive and full of energy prior to his EEO complaint, now says that complainant is depressed.
According to his other friend, their gatherings decreased from twice a
month to once every two to three months.
Complainant sought treatment from one psychiatrist (the psychiatrist)
between March and August 1993. He saw this psychiatrist five times,
and during that period, his condition was treated with Tranxene and
Imiprimine. Thereafter, the psychiatrist moved his practice, and
complainant ceased to see him.
Complainant saw a physician on September 10, 1993, when he began
experiencing severe chest pains on the way to work. According to
complainant’s physician (Physician-2), a board certified Cardiologist,
complainant presented with “severe chest pains radiating to the left
axilla associated again with severe anxiety related to job stress.”
In a medical evaluation dated August 5, 1996, Physician-2 stated that
the tests performed on complainant, including stress echocardigraphy,
stress thallium scanning, upper G.I. series, serial EKG’s and cardiac
enzymes, were negative, indicating that complainant’s cardiac symptoms
are related to anxiety, depression and stress. Physician-2 also stated
that the “job related ‘discrimination and reprisal’ [were producing]
the following symptoms: palpitations, chest pains, hyperventilation
(periods of), anxiety, depression and insomnia.” Physician-2 stated
that, because of the length and severity of complainant’s symptoms,
his prognosis is poor, and complainant will require constant followup
with a cardiologist and psychiatrist.
After complainant was hospitalized with chest pains and was visibly
depressed without any physical basis to his symptoms, Physician-2 referred
complainant to Physician-1. In a medical evaluation dated July 15, 1996,
Physician-1 explained that he initially saw complainant on September 23,
1993, and diagnosed him with “Major Depression, Recurrent, secondary
to, and resultant to, the discrimination he experienced at his job.”
Physician-1 stated that as a result of the discrimination, complainant
had vegetative signs and symptoms of depression and was unable to work
as exhibited by poor concentration, difficulty functioning, anhedonia,
and feelings of hopelessness and helplessness. Physician-1 noted
that complainant had no other stressors in his life. Physician-1 also
stated that complainant has panic episodes related to the incidents,
still fears reprisal for filing the EEO complaint and continues to have
nightmares in which his third level supervisor requests that complainant
withdraw his EEO complaint in a threatening manner. Physician-1 diagnosed
complainant with Major Depression, Recurrent and Panic Disorder directly
related to the discrimination. Physician-1 further stated that, as of the
date of the letter, complainant was being treated with anti-depressant
medications and attended psychotherapy biweekly. Physician-2 noted
that, although complainant’s symptoms should decrease when the case is
over, “his prognosis remains guarded,” because his career path has been
terminally interrupted.
C. Calculation of Damages Payable
1. Past Pecuniary Damages
In Wallis, the Commission held that it will apply the “collateral source”
rule in compensatory damages cases: sources of funds collateral to
the defendant may not be used to offset the financial liability of the
defendant. EEOC Appeal No. 01950510. Health insurance, even where funded
by agency contributions, is deemed a collateral source in that the agency
was not seeking to insure itself against injury to the employee caused
by discrimination. Wallis, EEOC Appeal No. 01950510. Double recovery is
not an issue, because complainant’s health insurer may recover from him
the monies it expended on his behalf. See Ward-Jenkins v. Department
of the Interior, EEOC Appeal No. 01961483 (March 4, 1999.) Here, as in
Wallis, complainant is entitled to recover the full amount of the fees
charged for any medical services he received in connection with the injury
caused by the non-selection for training and reprisal, notwithstanding
that any or all of those fees have been covered by his health insurance.
Complainant has provided copies of his medical, hospital, testing and
prescription bills, insurance claims reports and receipts, as well as
medical evaluations from his two treating physicians (Physician-1 and
Physician-2), explaining what treatment complainant received and how
the treatment related to the discrimination in this case. Complainant
requests a total of $26,050.60 for medical services rendered in connection
with the injury caused.
First, complainant seeks to recover $550.00 for fees charged by his first
psychiatrist during five visits. However, this physician did not submit
reports regarding the treatment he provided to complainant. Accordingly,
we find that complainant is not entitled to recover the amount of the
fees charged for medical treatment by this physician because he has
failed to provide sufficient information regarding the treatment provided.
Complainant also seeks to recover $3,080 for fees charged by Physician-2
for office visits, excluding in-hospital treatment.<2> He has provided
insurance claims reports and receipts to prove his total. Physician-2
is complainant’s cardiologist and treated complainant for chest pains
and palpitations. We note that Physician-2 reported that complainant
has been under severe stress stemming from “discrimination and reprisal
on his job.” We find that complainant has provided sufficient evidence
to recover the full amount requested for fees charged for office visits
by Physician-2.
Physician-2 also ordered diagnostic tests on complainant on seven
separate occasions totaling $1,158.68. Complainant has provided copies
of the insurance claims reports, and Physician-2 explained the nature
and reason for his testing in his report, namely a desire to eliminate
possible causes of his cardiac symptoms. Based on the evidence before
us, we find that complainant is entitled to recover the amount of the
fees charged for diagnostic tests in the amount of $1,158.68.
With respect to Physician-1, complainant has provided insurance
claims reports and receipts for office visits in the amount of $8,250.
The record reflects that complainant sought treatment from Physician-1
approximately twice a month in 1993, 1994 and 1995. We further note that
Physician-1 diagnosed complainant with “Major Depression, Recurrent,
secondary to, and resultant to, the discrimination he experienced at
his job.” We find that complainant has provided sufficient evidence
to recover the full amount requested for fees charged for office visits
by Physician-1.
Complainant seeks to recover $811.76 in out of pocket expenses for
medications Physician-1 and Physician-2 prescribed for his conditions.
He provides copies of his prescription receipts as prepared for him by
the pharmacist. We note that Physician-1 and Physician-2 stated in their
medical evaluations that they prescribed these medications for treatment
of complainant’s symptoms which were produced by the discrimination and
reprisal experienced at work. Accordingly, we find that complainant is
entitled to recover the full amount paid in out of pocket expenses for
his medications.
Complainant was hospitalized on three occasions due to his conditions.
His first hospitalization occurred on September 10-15, 1993, when he
presented with severe chest pain. The insurance claim report reflects a
charge of $7,672.91 for this hospital stay. During this hospital stay,
complainant accumulated $1,878 in fees charged for services provided by
Physician-2, radiology testing, and cardiology work. On July 7, 1994,
while on temporary duty in Texarkana, Texas, complainant went to the
emergency room of Wadley Regional Medical Center with chest pains and
palpitations. He provides an insurance claim report reflecting a charge
of $110.00. Finally, on August 9, 1994, complainant returned to the
hospital for tests ordered by Physician-2. The insurance claim report
reflects a charge of $484.25 for this visit. We note that the record
indicates that these expenses were incurred because of complainant’s
symptoms as related to the discrimination and reprisal complainant
experienced at work. We find that complainant has provided sufficient
evidence to recover the full amount requested for fees charged for his
hospitalization and medical services provided pursuant thereto.
Finally, complainant requests $2,000 total for fees charged by Physician-1
and Physician-2 for medical evaluations prepared for submission to
the agency for compensatory damages. Based on the record before us,
we find that complainant is entitled to recover the amount of the fees
charged for medical evaluations in the amount of $2,000.00.
After a thorough review of all of complainant’s evidence, including
medical, hospital, testing and prescription bills, insurance claims
reports and receipts, as well as medical evaluations prepared by
Physician-1 and Physician-2, we find that complainant is entitled to
recover fees charged for medical services he received in connection with
the injury caused by the non-selection for training and reprisal in the
amount of $25,445.60. This award excludes the $550.00 for fees charged
by his first psychiatrist because complainant did not submit a medical
evaluation from this physician regarding the treatment he provided to
complainant. On remand, the agency shall pay past pecuniary damages in
the amount of $25,445.60 as substantiated by billing statements submitted
by complainant.
Complainant also requested that he be compensated for use of 249 hours
in annual leave and 633 hours in sick leave as part of his compensatory
damage claim. We note, however, that leave restoration is an equitable
remedy, and therefore not appropriately requested by complainant as part
of his compensatory damage award. See, e.g., McGowen-Butler v. Department
of Treasury, EEOC Request No. 05940636 (September 9, 1994).
2. Future Pecuniary Damages
Regarding future pecuniary losses, Physician-1 and Physician-2 both
stated in their medical evaluations that complainant will continue to
need medical treatment. Specifically, Physician-2 reports that, due
to the length and severity of complainant’s symptoms, he will require
constant followup from a cardiologist and a psychiatrist. Physician-1
reports that complainant’s symptoms will decrease when this case ends,
but since his career path has been terminally interrupted, complainant
will have some continuation of his depression, including nightmares and
panic symptoms. We note again that Physician-2 described complainant’s
prognosis as “poor,” whereas Physician-1 described his prognosis as
“guarded.” Although complainant requests that his medical expenses be
calculated based on his expected life span multiplied by his current
medical expenses, the Commission finds this method of calculation to
be speculative for various reasons, including that it fails to account
for improvement in complainant’s condition. Complainant’s past medical
expenses indicate that the fee charged by Physician-1 for an office visit
was $125.00 and the fee charged by Physician-2 for an office visit was
$55.00. We note that insurance claims reports and receipts indicate that
complainant visited both of his physicians twice a month. The record
further reveals that complainant required three prescription drugs in
1996 with out of pocket expenses totaling $198.32. Based on the record
before us, we find that it is reasonable for complainant to require an
additional five years of treatment. Accordingly, the agency is directed
to pay $22,591.60 for complainant’s future medical expenses.
3. Non-Pecuniary Damages
In cases where the Commission has made substantial award for non-pecuniary
damages, the evidence of record tended to show that the emotional or
psychological injuries that resulted from the agency’s actions had
permanent or substantially long-term effects. Hogeland v. Department
of Agriculture, EEOC Appeal No. 01976440 (June 14, 1999).
Complainant has documented, through his physicians’ medical evaluations
and various affidavits, the physical and mental effects of the agency’s
discrimination. Based on the objective evidence reviewed above, we find
that complainant proved that he experienced significant emotional distress
and physical symptoms which were caused by his non-selection for training
and reprisal by his third level supervisor. The record reveals that the
agency’s conduct resulted in complainant requiring continuous medical
treatment for Major Depression, chest pains, palpitations, anxiety
and insomnia. Furthermore, the affidavits submitted by complainant,
his wife and his friends indicate that a severe strain has been placed
on complainant’s relationships, as evidenced by complainant’s lack of
interest in his children, loss of consortium and his diminished enjoyment
of life. We note that complainant’s wife and friends testified that
the situation at work became the all-consuming factor which caused
complainant to suffer emotionally.
Taking into account the evidence of non-pecuniary damages submitted
by the complainant, the Commission finds that complainant is entitled
to non-pecuniary damages in the amount of $100,000.00. See Chow
v. Department of the Army, EEOC Appeal No. 01981308 (August 5, 1999)
($100,000 awarded where complainant experienced depression, abdominal
pains, chest pains, headaches, and difficulty breathing and sleeping
due to nightmares); Kelly v. Department of Veterans Affairs, EEOC
Appeal No. 01951729 (July 29, 1998) ($100,000 awarded where complainant
was subjected to hostile work environment that caused her to develop
significant levels of anxiety, nervousness and depression, which were
manifested by nightmares, cognitive inefficiency, periods of tearfulness,
and suicidal ideation); and Finlay v. United States Postal Service,
EEOC Appeal No. 01942985 (April 29, 1997) ($100,000.00 in non-pecuniary
damages where complainant experienced depression, frequent crying,
concern for physical safety, lethargy, social withdrawal, concern for
physical safety, recurring nightmares and memories of harassment, a
damaged marriage, stomach distress, and headaches). Our determination
considers the emotional and physical symptoms described by complainant,
his physicians, his wife and his friends.
CONCLUSION
Accordingly, the agency’s decision is MODIFIED and REMANDED for further processing in accordance with this decision and the ORDER below.
ORDER
The agency is ordered to take the following remedial actions:
1. Within sixty (60) days from the date this decision becomes final, the agency shall pay complainant the following amounts for medical expenses:
(1) $25,445 for past pecuniary damages; and
(2) $22,591.60 for future pecuniary damages.
2. Within sixty (60) days from the date this decision becomes final, the agency shall pay complainant $100,000 in non-pecuniary compensatory damages.
3. 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 of the agency’s calculation of and other benefits due complainant, including evidence that the corrective action has been implemented.
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 (T0900)
This decision affirms the agency’s final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
____09-26-01______________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision was received within five (5) calendar days after it was mailed. I certify that this decision was mailed to complainant, complainant’s representative
(if applicable), and the agency on:
__________________
Date
______________________________
1 Complainant stated that his third level supervisor told him, “You will be nothing but [a] zero on the Arsenal.”
2 We note that a discrepancy exists between the amount requested in complainant’s affidavit and the amount requested in complainant’s brief in support of damages. After a review of the insurance claims reports and receipts, we determine that the amount of $3,080 as cited in the affidavit is correct.
