Edwina H. Jackson, ) Appellant, ) ) and ) ) David R. Beaner, ) Appeal Nos. 01972555 Appellant, ) 01972556 ) Agency Nos. 4D254093 v. ) 4D251093 ) Hearing Nos. 100-95-7022X William J. Henderson, ) 100-95-7025X Postmaster General, ) United States Postal Service, ) Agency. ) ______________________________) DECISION On February 10, 1997, Edwina H. Jackson (“appellant Jackson”) and David R. Beaner (“appellant Beaner”), by and through their attorney, timely appealed their individual final agency decisions, each dated January 10, 1997, concluding neither appellant had been discriminated against in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. s 2000e et seq. Appellants had alleged that, in 1993, each was discriminated against on the basis of race (African-American) and color (black) when they were subjected to racially motivated harassment from co-workers. This appeal is accepted in accordance with the provisions of EEOC Order No. 960.001.<1> BACKGROUND The record reveals that, during the relevant time, appellants were employed by the agency as letter carriers in Virginia. Appellant Jackson is an African-American female and began her service with the agency in August of 1988. Appellant Beaner is an African-American male and began his service with the agency on June 28, 1988. Both appellants worked in the main post office for Falls Church, Virginia. The Falls Church Post Office (“facility”) employed approximately two hundred and thirty (230) employees. While at the facility, appellants worked on the workroom floor casing mail with the other letter carriers. The record established that the workroom floor was separated into zones with a supervisor for each zone and that those employees in the same zone worked in close proximity. At the time in question, appellants worked in the same zone and had the same zone supervisor (“ZS”) (African-American). With regard to the racial atmosphere at the facility, appellant Beaner provided the following testimony.<2> In early January 1993, a Caucasian co-worker (“CW1”) standing by the time clock, shouted that he would not eat at a Filipino co-worker's home because Filipinos eat human beings. Appellant Beaner stated that also in January 1993, another Caucasian co-worker shouted to an African-American co-worker that watermelons were on sale at a local supermarket and that he needed to get to the watermelons before “you people” get them all. Later in January 1993, Appellant Beaner and an Hispanic co-worker were on the loading dock when CW1 confronted the co-worker and called him a “spic” and “wetback.” Appellant Beaner stated that he heard CW1 repeatedly refer to an African-American co-worker as “chigger” which he believed was a combination of the co-worker's name and a racial slur. On April 21, 1993, he was working in a cubicle with an African-American co-worker when CW1 entered the cubicle and repeated a joke from the Howard Stern radio show which referred to a cowboy putting on his “nigger-kicking boots.”<3> Appellant Beaner stated that, on May 6, 1993, CW1 told him that “I'm doing the same thing you people do” when asked why he was not working. He stated that when he asked CW1 why he had to comment on race, CW1 stated that it is his world and he could do and say anything he wanted. The following day, appellant Beaner reported the incident to the ZS. Appellant Jackson testified to the following incidents. In January 1993, she overheard conversations between unidentified Caucasian employees stating that “Blacks have big lips” and comparing the physical appearance of a Black man to that of a monkey. She stated that once when she made a mistake in routing her mail, a Caucasian co-worker stated that you Blacks always make mistakes. She stated that CW1 continually called an African-American co-worker “chigger,” a term she perceived to be offensive. In April 1993, she was assigned to work with CW1 and during the course of a conversation about a certain movie, CW1 stated that he did not go to the movies any more because “Black people sit in the back of the theater eating chicken.”<4> Appellant Jackson stated that after she confronted him on his statement, CW1 replied, “it was his world and he could say what he wanted when he wanted.” Appellant Jackson stated that in May 1993, CW1 informed her that he would never marry a Black woman because when they get old, they get fat and out of shape.<5> She stated that she became angry and warned CW1 to watch his words. Appellant stated that in June 1993, a Caucasian co-worker (“CW2”) commented that, in regards to the Denny's restaurant discrimination suit, that is why he went to Denny's because he did not have to worry about sitting by or being served by “any” (implying African-Americans). Other witnesses testified about the racial incidents at the facility. A co-worker (African-American) stated that CW1 would state that the best thing that ever happened to him was being White and over 30. He further testified that CW1 once stated that if killing Martin Luther King gained employees a day off, other Blacks should be killed to create other holidays. Several witnesses testified that certain Caucasian employees would complain loudly about the incompetency of minority employees at the Merrifield postal facility.<6> On May 6, 1993, after CW1 made the comment “I'm doing the same thing you people do,” appellant Beaner reported the incident to the ZS, who in turn referred him to the station's Postmaster (“PM”) (Caucasian). The next day, the PM called appellant Beaner to her office to discuss his allegation. Appellant Beaner met with the PM and gave her a list of witnesses who heard CW1's statement. The PM assured appellant Beaner that she would investigate the allegation and contact him at the conclusion of her investigation. After the PM investigated the allegation including interviewing CW1, she determined that CW1 had made the alleged comment and gave him an Official Discussion regarding his inappropriate behavior. She also determined that derogatory, racially motivated comments were a problem throughout the facility with inappropriate comments being made by both African-American and Caucasian employees.<7> As a result of her conclusions, the PM decided to schedule diversity training for the facility's employees. Thereafter, on May 11, 1993, the PM scheduled the Employee Involvement Coordinator to provide training to the station's employees. However, the record revealed that the training essentially dealt with sexual harassment not racial discrimination. Appellant Beaner stated that he went to the PM for a follow-up at the end of the month of May. She informed him of her conclusions and that she gave CW1 an Official Discussion. Appellant Beaner informed the ZS and PM that he was dissatisfied with the results of the investigation. He testified that the ZS stated that if he did not like the results, he could file an EEO complaint. As a result, appellant Beaner made his initial contact with an EEO Counselor on May 28, 1993. On June 5, 1993, after overhearing the CW2's Denny's remarks, appellant Jackson contacted the ZS to complain. The ZS instructed her to write out her allegation so that he could give it to the PM. Thereafter, the PM summoned appellant Jackson to her office and stated that she would speak to CW2 and get back to her. After not hearing from the PM, appellant Jackson made contact with an EEO Counselor on June 7, 1993. Appellant Jackson filed her formal complaint on July 12, 1993, while appellant Beaner filed his formal complaint on July 15, 1993. Following individual investigations, both appellants requested hearings before an EEOC Administrative Judge (AJ). On November 12, 1996, following a consolidated hearing on the merits at which nine witnesses testified and a consolidated hearing on the compensatory damage issues at which seven witnesses testified, the AJ issued his recommended decision (“RD”) concluding that the evidence supported a finding of discrimination for both appellants based on a racial hostile work environment. In reaching this conclusion, the AJ found that appellants gave credible testimony, while several agency witnesses gave inconsistent and incredible testimony. Addressing the merits, the AJ found that appellants were members of protected groups and subjected to unwelcome verbal conduct, involving race and color, which was based on appellants' race and color. Next, the AJ found that the unwelcome conduct created an intimidating, hostile and offensive work environment. Last, the AJ found that the agency knew or should have known of the hostile work environment, and failed to take prompt remedial action. Specifically, the AJ found that the PM's actions were broad, nonspecific and delayed, and fell short of being reasonably calculated to end the harassment.<8> As to the issue of relief, after considering the severity and duration of the harm, the amounts awarded by other courts addressing similar harm, and the extent of other factors other than discrimination may have affected the harm, the AJ found that the appellants were entitled to compensatory damages. The AJ recommended that appellant Jackson be paid $50,000.00 in nonpecuniary compensatory damages to compensate her for the outrageous nature of the discrimination and the continued effects of the discrimination. Similarly, the AJ recommended compensatory damages in the amount of $67,151.59 for appellant Beaner's claim.<9> On January 10, 1997, the agency issued a separate final agency decision (“FAD”) for each appellant, in which it rejected the AJ's findings of discrimination.<10> Specifically, the agency stated that the AJ erred in finding that the employees of the facility regularly engaged in racially offensive conduct. The agency next stated that the remarks in question did not rise to the level of affecting a term or condition of appellants' employment. Additionally, the agency contended that immediate and appropriate corrective actions were taken as soon as the agency was put on notice of the discriminatory behavior. Last, the agency asserted that, because appellants only reported isolated incidents to the PM, there is no basis to determine that the agency had sufficient knowledge of all of the allegations offered in this case. It is from these FADs that appellants now appeal. ANALYSIS AND FINDINGS Harassment Appellants allege that they were subjected to a Title VII-based hostile environment and harassment. The harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful if it is sufficiently patterned or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (Aug. 14, 1998)(citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)). In determining that a working environment is hostile, factors to consider are the frequency of the alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating, and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 6. The Supreme Court stated: "Conduct that is not severe or pervasive enough to create an objectively hostile work environment - an environment that a reasonable person would find hostile or abusive - is beyond Title VII's purview." Harris, 510 U.S. at 22 (1993). To establish a prima facie case of hostile environment harassment, a complainant must show that: (1) s/he belongs to a statutorily protected class; (2) s/he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; and (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment. Humphrey v. United States Postal Service, Appeal No. 01965238 (October 16, 1998); 29 C.F.R. §1604.11. Evidence of the general work atmosphere, involving employees other than the complainant, also is relevant to the issue of whether a hostile environment existed in violation of Title VII. Vinson v. Taylor, 753 F.2d 141, 146 (D.C. Cir. 1985), aff'd in relevant part and rev'd in part, Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). To avoid liability for hostile environment harassment, an agency must show that: 1) the acts/conduct complained of did not occur; 2) the conduct complained of was not unwelcome; 3) the alleged harassment was not sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment; 4) immediate and appropriate corrective action was taken as soon as the employer was put on notice; and/or 5) there is no basis for imputing liability to the employer under agency principles. See Vinson, supra. The Commission agrees with the AJ and finds that appellants have established prima facie cases of race-based harassment, in that they are African-American; both were subjected to harassment in the form of unwelcome verbal conduct involving their race; the harassment complained of was based on their race; and the harassment had the effect of unreasonably interfering with the work environment and creating an intimidating, hostile, and offensive work environment. In making the above finding, we find that the atmosphere of the facility, with strong piercing racial statements being made by various individuals, was sufficiently severe and pervasive to alter the conditions of the appellants' employment and create an abusive working environment.<11> We also find that the agency was aware of the conduct in question and contrary to its assertions, failed to take immediate and appropriate corrective action as soon as the PM was put on notice of the harassing conduct. The PM stated that as the result of appellants' complaints, she gave CW1 and CW2 Official Discussions regarding their conduct, conducted service talks regarding improper comments, and scheduled harassment and diversity training. However, we find that given the testimony regarding the frequency of CW1's actions in the workplace, the PM actions were not incisive and focused enough to cause an end to his inappropriate conduct. As the AJ pointed out, the agency's regulations state that an Official Discussion is appropriate for addressing minor offenses and are not considered discipline. As for the other actions by the PM, we find them inadequate. We agree with the AJ and find that the PM's testimony regarding the service talks is inconsistent and uncorroborated. With respects to the harassment training, the evidence shows that the session strictly focused on sexual harassment as opposed to addressing the racial atmosphere in the facility. Finally, nearly six months after the complaints, the PM scheduled diversity training for the facility employees. However, we find that this training did not constitute a prompt corrective action given the nature of the complaints. In light of the foregoing, we find that appellants have proven by the preponderance of evidence that they were subjected discriminatory harassment in the workplace which was based on their race. Compensatory Damages Section 102(a) of the 1991 Civil Rights Act authorizes an award of compensatory damages for all post-Act pecuniary losses, and for non-pecuniary losses, such as, but not limited to, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to character and reputation, and loss of health. In Jackson v. United States Postal Service, EEOC Appeal No. 01923399 (November 12, 1992) req. for reconsid. denied, EEOC Request No. 05930306 (February 1, 1993), the Commission held that Congress afforded it the authority to award such damages in the administrative process. It based this assessment, inter alia, on a review of the statutory provisions of the Civil Rights Act of 1991 in relation to one another and on principles of statutory interpretation which require statutes to be interpreted as a whole. In particular, the Commission discussed the meaning of the statute's definition of the term "complaining party" and the significance of the reference to the word "action" in Section 102(a) -- i.e., that the term "action" includes cases in both judicial and administrative forums. We note that in Section 717(c) of the Civil Rights Act of 1-964 (42 U.S.C. s2000e et seq.)(CRA), the term "final action" is used to refer to administrative decisions by agencies or the Commission, as distinguished from the term "civil action," used to describe the rights of employees after such final action is taken. Moreover, Section 717(b) of the CRA conveyed to the Commission the broad authority in the administrative process to enforce the nondiscrimination provisions of subsection (a) through "appropriate remedies." Non-pecuniary and future pecuniary damages are limited to an amount of $300,000.00. Compensatory damages do not include back pay, interest on back pay, or any other type of equitable relief authorized by Title VII. 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 reconsid. denied, 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 at 11-12, 14 (July 14, 1992). An appellant is required to provide objective evidence that will allow an agency to assess the merits of a complainant's request for emotional distress damages. See Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993). Nonpecuniary Damages There are no definitive rules governing the amount of nonpecuniary damages to be awarded. However, nonpecuniary damages must be limited to the sums necessary to compensate the injured party for actual harm, even where the harm is intangible, see Carter v. Duncan - Higgins, Ltd., 727 F.2d 1225 (D.C. Cir. 1984), and should take into account the severity of the harm and the length of time that the injured party has suffered the harm. Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995). The Commission notes that for a proper award of nonpecuniary 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 Cygnar v. City of Chicago, 865 F. 2d 827, 848 (7th Cir. 1989); EEOC v. AIC Security Investigations, Ltd., 823 F. Supp. 571, 574 (N.D. Ill. 1993). Several Commission decisions have awarded compensatory damages in cases somewhat similar to appellants'. McCann, Virginia A. v. Department of the Air Force, Appeal No. 01971851 (October 23, 1998)($75,000 in nonpecuniary damages for a discriminatory discharge where appellant presented evidence of feelings of psychological numbness, anger, insomnia, depression, flashbacks, nightmares, fear, fatigue, diminished pleasure in activities, some social withdrawal, less confidence on the job and a constant fear of unjustified job loss); Santiago v. Department of the Army, Appeal No. 01955684 (Oct. 14, 1998) ($125,000 in nonpecuniary damages where appellant suffered depression and other emotional and mental disorders, and severe chest and stomach pains, digestive problems, and incidents of shortness of breath due to three years of verbal abuse and sex and age-based discrimination by her supervisor); Hull v Department of Veterans Affairs, Appeal No. 01951441 (Sept. 18, 1998) ($12,000 in nonpecuniary damages where appellant suffered emotional distress due to his supervisor's reprisal motivated harassment); Turner v. Department of the Interior, EEOC Appeal Nos. 01956390 and 01960518 (April 27, 1998) ($40,000 in nonpecuniary damages for physical pain, loss of enjoyment of life and loss of health sustained by appellant as a result of harassment); Mullins v. United States Postal Service, EEOC Appeal No. 01954362 (May 22, 1997) ($10,000.00 in nonpecuniary damages where the evidence established that the appellant's depression and other emotional and mental disorders were the direct result of sexual harassment and reprisal); Finlay v. United States Postal Service, EEOC Appeal No. 01942985 (April 29, 1997) ($100,000 in nonpecuniary damages for severe psychological injury over four years which was expected to continue for an indeterminate period of time. This included ongoing depression, frequent crying, concern for physical safety, loss of charm, lethargy, social withdrawal, concern for physical safety, recurring nightmares and memories of harassment, a damaged marriage, stomach distress, and headaches); Wallis v. United States Postal Service, EEOC Appeal No. 01950510 (November 13, 1995) ($50,000.00 in nonpecuniary damages for aggravation of pre-existing emotional condition, where effects were expected to last at least seven years). In the present case, the record contains evidence from physicians, family members and friends concerning physical and emotional harm sustained by appellants as a direct result of the harassment herein described. Appellant Beaner has received treatment from two psychiatrists and a psychotherapist, whom diagnosed him with major depression stemming from the hostile racial environment he experienced at work. Appellant Beaner testified that as a result of the racial harassment, he experienced anxiety, embarrassment, weight gain and humiliation, suffered from depression, high blood pressure, fatigue, sleeplessness, and forgetfulness, and endured interference with his marriage and other family relations. His testimony was corroborated by his wife. Appellant Jackson testified that she initially sought psychiatric help, but after her initial visit realized that she could not afford continued treatment. She also testified that as result of the harassment, she experienced anxiety, embarrassment, weight gain and stress, suffered from depression and migraines, and endured interference with her marriage and other family relations. Her testimony was corroborated by her husband and a co-worker. We agree with the finding of the AJ that the harassment in this case was the sole cause of appellants' emotional and physical harm. Nevertheless, given Commission awards in similar cases, the AJ's awards of $50,000 and $65,000 in nonpecuniary damages were excessive. Appellants' injuries do not rise to the level of severity meriting a nonpecuniary award of $50,000 or more. For example, unlike the complainants in Finlay and Wallis, appellants have not presented sufficient evidence of a long-term impairment; in fact, three years after the discriminatory incidents both appellants reported an improvement in their emotional and physical states. At the hearing, when asked if there had been any improvement in her mental and physical condition, appellant Jackson testified that, “Yes, yes. The migraines have improved. They are still there, but they are not as common as they were.” See Transcript p. 707. She also testified that she had experienced improvement regarding her weight gain and marital and other family relations. See Transcript pp. 708-09. Likewise, at the hearing, when asked about his current condition in particular his sleeplessness, appellant Beaner testified that, “Oh, it had got better.” He also testified that he had experience improvement regarding his weight gain and family relations. See Transcript pp. 802, 803, 857. Additionally, neither appellant has shown that their injury was as substantial as that of the complainant in McCann, who relapsed into her previously diagnosed post traumatic stress disorder after being subjected to reprisal discrimination. Still, we agree with the finding of the AJ that the discrimination in question caused appellants significant pain and suffering. Based on the foregoing evidence which establishes the emotional and physical harm sustained by appellants and upon consideration of damage awards reached in comparable cases, the Commission finds that each appellant is entitled to award of nonpecuniary damages for their injuries in the amount of $30,000.00. Pecuniary Damages A complainant may recover past out-of-pocket expenses incurred as a result of the intentional discrimination. EEOC Notice No. N 915.002 at 8. The AJ found and we agree that appellant Jackson failed to present sufficient evidence concerning pecuniary damages. As for appellant Beaner, we agree with the AJ's recommendation of $2,151.59 for past and future medical expenses.<12> CONCLUSION Based on a thorough review of the record, and for the foregoing reasons, it is the decision of the Equal Employment Opportunity Commission to REVERSE the agency's final decisions. ORDER The agency is ORDERED to take the following remedial action: (A) Within thirty (30) days of the date on which this decision becomes final, the agency shall tender to appellant Jackson nonpecuniary compensatory damages in the amount of $30,000.00. (B) Within thirty (30) days of the date on which this decision becomes final, the agency shall tender to appellant Beaner nonpecuniary compensatory damages in the amount of $30,000.00 and pecuniary compensatory damages in the amount of $2,151.59. (C) The agency shall provide EEO sensitivity training with special emphasis on racial discrimination to all employees at the Falls Church facility within forty-five (45) days of the date on which this decision becomes final. (D) The agency shall post the attached Notice in accordance with the directive below. (E) 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 evidence that the corrective action has been taken. ATTORNEY'S FEES (H1092) If appellant 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 (K0595) 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 appellant. If the agency does not comply with the Commission's order, appellant may petition the Commission for enforcement of the order. 29 C.F.R. §1614.503 (a). Appellant 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. §§ 1614.408, 1614.409, and 1614.503 (g). Alternatively, appellant 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. §§ 1614.408 and 1614.409. 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 (Supp. V 1993). If appellant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. §1614.410. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0795) The Commission may, in its discretion, reconsider the decision in this case if appellant or the agency submits a written request containing arguments or evidence which tend to establish that: 1. New and material evidence is available that was not readily available when the previous decision was issued; or 2. The previous decision involved an erroneous interpretation of law, regulation or material fact, or misapplication of established policy; or 3. The decision is of such exceptional nature as to have substantial precedential implications. Requests to reconsider, with supporting arguments or evidence, MUST BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive a timely request to reconsider filed by another party. Any argument in opposition to the request to reconsider or cross request to reconsider MUST be submitted to the Commission and to the requesting party WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request to reconsider. See 29 C.F.R. § 1614.407. All requests and arguments must bear proof of postmark and 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 filed on the date it is received by the Commission. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely. If extenuating circumstances have prevented the timely filing of a request for reconsideration, a written statement setting forth the circumstances which caused the delay and 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. § 16l4.604(c). RIGHT TO FILE A CIVIL ACTION (R0993) This is a decision requiring the agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court. It is the position of the Commission that you have the right to file a civil action in an appropriate United States District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you receive this decision. You should be aware, however, that courts in some jurisdictions have interpreted the Civil Rights Act of 1991 in a manner suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this decision. To ensure that your civil action is considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this decision or to consult an attorney concerning the applicable time period in the jurisdiction in which your action would be filed. In the alternative, you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date you filed your complaint with the agency, or filed your appeal with the Commission. If you file a civil action, YOU MUST NAME AS THE DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND OFFICIAL TITLE. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. Filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z1092) If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request that the Court appoint an attorney to represent you and that the Court permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File A Civil Action"). FOR THE COMMISSION: April 15, 1999 ________________ _______________________________ DATE Frances M. Hart Executive Officer 1 This decision consolidates appeal numbers 01972555 and 01972556 both filed on February 10, 1997. 2 Appellants' complaints were limited to harassment occurring in 1993. See Beaner v. United States Postal Service, Appeal No. 01940944 (July 11, 1994). 3 Other co-workers testified that CW1 would repeat Howard Stern jokes which were racially offensive in nature. 4 A co-worker (Caucasian) testified that she also heard CW1 make this statement. 5 A co-worker (Caucasian) testified that she heard CW1 make this statement. 6 Testimony indicated that Merrifield employed mostly Hispanic individuals. 7 The PM never provided any evidence to substantiate this determination. 8 The PM stated that she gave a service talk in May of 1993 addressing racism. However, the AJ found that, because of her inconsistent testimony, the PM was not a credible witness. The AJ also found that the sexual harassment training, EEO training for EI team, service talks by the supervisors, and diversity training were unresponsive to the racial problems reported by appellants. Last, the AJ found that the PM's disciplinary actions were inadequate given the pervasiveness of the racial problems at the station. 9 The AJ recommended $65,000.00 of nonpecuniary damages for the outrageous nature and continuing effects of the discrimination, and $2,151.59 of pecuniary damages for the out-of-pocket and future medical expenses. 10 The agency also stated that, since it was rejecting the AJ's findings, the FADs would not address the compensatory damages issue. 11 We distinguish this case from that of Ware v. Department of Justice, Appeal No. 01963427 (Oct. 30 1998), where we found that two racially-motivated comments, which were expressed within a two year period and not made directly to or in the presence of the appellant, were not sufficiently severe or pervasive to alter the conditions of the appellant's employment and create a hostile environment. The present case involves numerous racially-motivated comments which were uttered within a six month span and in most instances, made directly to or in the presence of appellants. 12 This amount represents $487.90 for stress management audio and video tapes, $463.69 for past medical expenses, and $1,200.00 for future medical expenses which encompasses monthly medical visits for two years at $50.00 per visit.