ARTURO HERNANDEZ, COMPLAINANT, v. JOHN E. POTTER, POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE (PACIFIC AREA), AGENCY. Appeal No. 07A30005 Hearing No. 370-99-X2180 Agency No. 4F-940-0120-98, 4F-940-0077-98, 4F-940-0196-97 INTRODUCTION Following its October 4, 2002 final order, the agency filed a timely appeal which the Commission accepts pursuant to 29 C.F.R. § 1614.405. On appeal, the agency requests that the Commission affirm its rejection of an EEOC Administrative Judge's (AJ) finding that the agency discriminated against the complainant because of his disability (herniated nucleus pulposis lumbar back injury) and retaliated against him for engaging in protected equal employment opportunity (EEO) activity. The agency further requests that the Commission affirm its rejection of the AJ's associated remedial order. For the following reasons, the Commission REVERSES the agency's final order. BACKGROUND The record reveals the following information pertinent to this appeal. At all times relevant to this action, the complainant was employed as a Letter Carrier at the Redwood City Main Post Office in Redwood City, California. The complainant filed several formal EEO complaints with the agency, alleging that the agency had discriminated against him because of his disability, and retaliated against him for engaging in protected EEO activity, when: (1) he was forced to work beyond his medical restrictions; (2) his request for worker's compensation forms was denied; (3) on September 18, 1997, S1 delayed processing of the complainant's worker's compensation forms; (4) S1 told him to work faster and timed his performance of an assignment; (5) on January 23, 1998, he was issued a seven-day suspension;1 and (6) on March 23, 1998, S1 refused to accept delivery of worker's compensation forms from the complainant's wife. At the conclusion of the agency's investigation into these allegations, the complainant was provided a copy of the investigative report and requested a hearing before an AJ. Following a hearing, the AJ found the agency liable for unlawful discrimination as claimed by the complainant. In her decision, the AJ made the following findings of fact. In June, 1986, the complainant suffered a back injury at work, and in April, 1987, he was subsequently cleared by his physician for return to duty with the following restrictions and limitations: no lifting over twenty pounds; no lifting or carrying more than ten pounds up to eight hours a day; no lifting or carrying more than twenty pounds up to four hours per day; sitting up to four hours per day; standing up to six hours per day; walking up to six hours per day; climbing stairs up to two hours per day; occasional kneeling; occasional reaching above the shoulder; and no bending, stooping, twisting, pushing, or pulling. The complainant's physician stated that these restrictions should be considered permanent in duration. The agency was informed of the restrictions, and, in response, accommodated the complainant by providing him with various job duties that were within these limitations. In October, 1996, a new supervisor (S1) was assigned to the complainant's work unit. The complainant began to have difficulties with S1 shortly thereafter, when S1 became aware of the complainant's medical restrictions and responded in a hostile manner to the complainant's assertion that he could not perform a certain assignment because it required activity which exceeded his lifting restrictions. A few days after this incident, S1 began to assign job duties to the complainant which required him to exceed his standing, lifting, and bending restrictions, including duties which required prolonged standing, as well as lifting objects weighing between thirty-five and fifty pounds. S1 continued to assign these duties to the complainant on a daily basis, and the complainant with equal frequency informed S1 that these duties were beyond his medical limitations. S1 responded to the complainant's assertions by directing him to perform the duties. The complainant testified that on numerous occasions S1 also threatened to fire him and had fired two other employees with medical restrictions, and had compelled a similar employee to quit.2 On September 9, 1997, the complainant had a relapse of his back injury while at work. This relapse occurred after S1 again ordered the complainant to perform duties beyond his medical limitations, and had startled him several times by quietly coming up behind him and then saying "faster, faster!" As a result of S1's behavior and the complainant's efforts to work faster at duties beyond his medical limitations, the complainant felt his lower back pinch and his legs start to shake. That same day, the complainant's physician took him off work and placed him on total disability status. When the complainant returned to the workplace a few days later to drop off and collect paperwork relating to this incident, S1 stated that he would not give him the necessary forms, and witnesses described S1's demeanor as very hostile and intimidating toward the complainant. The complainant eventually received the requisite paperwork from the facility's postmaster. However, despite the fact that the complainant subsequently submitted a completed continuation of pay request, S1 placed him on leave without pay status. The complainant returned to work in November, 1997, under the same medical restrictions as before, but with the additional restriction that he not case mail (one of the new duties S1 had assigned to the complainant, and which, as assigned by S1, exceeded his medical restrictions) for more that two hours a day. This information was again provided to the agency and S1. Nevertheless, S1 continued to routinely assign the complainant casing duties which took up to six hours a day. The complainant testified that these working conditions caused him increasing back pain, as well as depression, and his physician testified that the complainant had reported at that time that he was being overworked and his medical restrictions were being disregarded, and that his back pain was increasing. In January, 1998, S1 assigned the complainant to a delivery route which would exceed his medical restrictions. When the complainant informed S1 of this fact, S1 tried to find another carrier to deliver the route, but failed to do so and forgot to have the route delivered. When S1 came into work the following day and discovered the previous day's mail for that route still undelivered, he blamed the complainant for the situation and issued him a seven-day suspension. The AJ found that the suspension had been issued "on false grounds." On March 20, 1998, S1 assigned the complainant to delivery duties which exceeded his medical restrictions. The complainant informed S1 that he could not perform the assignment because he did not feel well, but nevertheless assented to the assignment out of fear of receiving discipline from S1. While delivering the route, the complainant's back pain became so bad that he could barely walk. After returning to the facility, the complainant went to see his physician, who hospitalized him. The complainant remained in the hospital over the weekend, and underwent emergency back surgery on the following Monday. He remained in the hospital for several more days, and was then released to recuperate at home. While in the hospital but prior to undergoing surgery, the complainant completed worker's compensation and other forms related to this event, and requested that his wife deliver them to S1 the following Monday. When she attempted to deliver the forms to S1, he said he did not have time to accept the forms and asked her to come back the next day. She did so, but, as this was S1's day off, he was not at the facility, so she provided the forms to another supervisor. The complainant remained out of work on total disability status until January, 1999, at which time he requested, and was provided, assignment to a different supervisor, and his medical restrictions were honored. Despite S1's no longer having supervisory authority over the complainant, S1 ordered him on his first two mornings back at work to clock out and move his car from the designated handicapped parking area (for which the complainant had a state-issued permit to park) to other non-reserved parking areas several blocks away. After union intervention on this issue on his third day back at work, S1 ceased this conduct against the complainant. The AJ also made specific additional findings regarding S1's retaliatory behavior. She noted that the complainant and another employee had testified that S1 had stated in regard to EEO complaints and grievances that the word of a supervisor has more value than theirs, that everyone would believe him, and that filing an EEO complaint was therefore a waste of time. S1 testified that he had told the complainant and others that they could file a complaint but needed to be able to prove the claim by convincing a third party as to their version of the story. The AJ also noted the complainant's testimony (supported by contemporaneous writings to the agency's EEO office and the postmaster of the facility) that S1 had told him that he had seen the complainant's correspondence with the EEO office, and that thereafter S1's attitude toward him became even worse, with S1 continuing to ignore the complainant's medical restrictions. On the basis of these findings of fact, the AJ first found that the complainant was a qualified individual with a disability entitled to the protections afforded such individuals under the Rehabilitation Act. The AJ based this finding on the complainant's back condition and consequent lifting, standing, bending, twisting, and other medical limitations. In particular, the AJ identified lifting as a major life activity, and the complainant's ten-pound lifting restriction as constituting a substantial limitation of that activity. The AJ further found that the complainant was qualified to perform the essential functions of his position, with accommodation, as he successfully did so for almost ten years prior to the arrival of S1. The AJ then found that the agency failed to provide the complainant with a reasonable accommodation for his disability when S1 continuously required him to work outside of his medical restrictions. She noted that the complainant's testimony on this point was consistent with that provided by other employees with permanent physical impairments who stated that S1 disregarded their medical restrictions and ordered them to perform tasks outside of their limitations. While S1 admitted that he may have unknowingly assigned duties to the complainant which were outside of his limitations, the AJ found that S1's actions amounted to a failure to meet the agency's duty to accommodate the complainant's disability. As for the disability harassment component of the complainant's claims, the AJ found that he had been subjected to conditions sufficiently severe and pervasive to alter his employment conditions and render his working environment abusive. She noted that this harassment was manifest through S1's behavior toward the complainant as described above, taken in their totality, including the threats of discipline and termination, refusal to honor the complainant's medical restrictions, and other hostile behaviors by S1. The AJ also found that the complainant had proven his retaliation claim, noting that the complainant had been alleging retaliation by S1 from as early as September, 1997, and that the evidence showed both S1's disdain for the EEO process and his attempts to use intimidation in order to keep the complainant and other employees from engaging in the EEO process. The AJ then ordered remedial relief for the complainant, including back and front pay, compensatory damages, and reasonable attorney's fees and costs. The agency's final order rejected the AJ's decision, without discussion. On appeal, the agency argues that the AJ erred in the following manner: by finding the complainant was a qualified individual with a disability, and that he had been subjected to a hostile work environment because of his disability and/or in retaliation for engaging in protected EEO activity; by relying upon evidence not in the record in making her ultimate finding of liability; and by concluding that the complainant's back injuries had been caused by the agency's misconduct.3 The complainant argues that the AJ's findings and remedial award are correct and deserving of affirmance on appeal. ANALYSIS AND FINDINGS Standard of Review Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. Nat'l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. Absent an error of law, however, an AJ's award of compensatory damages is an issue of fact subject to the substantial evidence standard of review. See Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 437 (2001) (noting that "the measure of actual damages suffered ... presents a question of historical or predictive fact"); Boehms v. Crowell, 139 F.3d 452, 459 (5th Cir.1998) (noting that "[a]bsent an error of law, [the court's] award of compensatory damages presents an issue of fact") (second alteration in original). Reasonable Accommodation The Rehabilitation Act prohibits agencies from refusing to make reasonable accommodations for the known physical or mental limitations of an otherwise qualified individual with a disability, unless the agency can demonstrate that the accommodation would impose an undue hardship on the operation of its business. 29 C.F.R. § 1630.9(a). An "individual with a disability" is defined as one who: (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such an impairment; or (3) is regarded as having such an impairment. 29 C.F.R. § 1630.2(g). Major life activities include, but are not limited to, caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 29 C.F.R. § 1630.2(i). The Interpretive Guidance to the Commission's regulations concerning the Rehabilitation Act further note that "other major life activities include, but are not limited to, sitting, standing, lifting, [and] reaching." 29 C.F.R. Part 1630 Appendix § 1630.2(i). As discussed above, the AJ found that the medical evidence of record established that, in pertinent part, the complainant's permanent ten-pound lifting restriction constituted a sufficient limitation upon his ability to engage in that major life activity to bring him under the definition of an individual with a disability. See LaPointe v. United States Postal Serv., EEOC Appeal No. 01992460 (June 27, 2002) (a complainant with a permanent 20 pound lifting restriction is substantially limited in the major life activity of lifting). This finding is supported by both substantial evidence in the record and Commission precedent, and therefore is affirmed on appeal. A "qualified" individual with a disability is "an individual with a disability who satisfies the requisite skill, experience, and other job-related requirements of the employment position such individual holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of such position." 29 C.F.R. § 1630.2(m). As amply shown by the evidence of record, the complainant was more than able to perform the essential functions of his position, with reasonable accommodation, for the near ten-year period from the first onset of his disabling condition to the arrival of S1. The agency presented no evidence which contradicted the AJ's finding on this issue. As the AJ's finding that the complainant was a qualified individual with a disability is supported by substantial evidence in the record, it is affirmed on appeal. In addition, the agency does not argue, and the record does not support, a finding that S1's failure to provide the complainant with the effective reasonable accommodation he had been provided for many years before the arrival of S1--assignment to job duties within his medical restrictions--would have visited an undue hardship upon the agency. Nor does the record support a finding that the complainant failed to properly inform the agency of his continuing need for reasonable accommodation. Accordingly, we find that the AJ's conclusion that the agency unlawfully failed to provide the complainant with a reasonable accommodation is supported by substantial evidence in the record. Harassment Harassment is actionable only if the harassment to which the complainant has been subjected was sufficiently severe or pervasive to alter the conditions of his employment and create a hostile work environment. Cobb v. Department of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997). To establish a claim of disability-based or retaliatory harassment, the complainant must prove: (1) that he is a member of a statutorily protected class; (2) that he was subjected to unwelcome conduct related to his membership in that statutorily protected class; (3) that the harassment complained of was based on his membership in the statutorily protected class; (4) the harassment affected a term, condition, or privilege of employment; and (5) that the employer knew or should have known of the harassment and failed to take prompt remedial action. See Flowers v. Southern Reg'l Med. Servs., Inc., 247 F.3d 229, 235-36 (2001) (recognizing claim for disability-based harassment); Roberts v. Department of Transp., EEOC Appeal No. 01970727 (Sept. 15, 2000) (recognizing claim for retaliatory harassment). In determining whether a working environment is hostile, factors to consider include the frequency of the alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); EEOC Enforcement Guidance on Harris v. Forklift Systems, Inc., No. 915.002, at 3, 6 (Mar. 8, 1994). The AJ found that the testimony presented by several agency employees established that while S1 was a harsh supervisor in general, he was particularly hostile and threatening toward disabled or otherwise injured employees. She further found that while S1 had discounted these claims by asserting that his practice was to give frequent "notice" of potential discipline to all employees, this frequent "notice" of potential discipline, combined with S1's refusal to honor the complainant's medical restrictions, S1's threats to terminate the complainant, S1's statements (as testified to by other agency employees) that injured employees should "find another job elsewhere," and S1's behavior in sneaking up behind the complainant and scaring him while he was performing duties outside of his medical restrictions, all contributed to a hostile work environment for the complainant. While the agency challenges the AJ's finding on this point by asserting that S1's motivation for his poor treatment of the complainant and other impaired individuals was based upon "production numbers, gaining a favorable reputation as an efficient supervisor, and possibly even greed," the evidence of record leaves no question that the aforementioned treatment of the complainant was visited upon him because of his disabling medical restrictions and need for reasonable accommodation. Accordingly, we find that the AJ properly concluded that the conduct of S1 towards the complainant constituted actionable harassment, and the AJ's finding on this point is supported by substantial evidence in the record. Similarly, the AJ's finding that S1 engaged in retaliatory harassment against the complainant is also supported by substantial evidence in the record. As found by the AJ, the record reflects that the complainant initiated EEO activity shortly after his first negative encounter with S1, that the complainant continued to engage in EEO activity because of the conduct of S1, and that S1 was aware of the complainant's EEO activity throughout the duration of that activity. The record also supports the AJ's finding that S1 had made comments to employees, including the complainant, reflecting his disdain for the EEO process and which constituted attempts to deter employees from participating in the EEO process. This included S1's statement to the complainant that while he can bring an EEO complaint, he will always have to prove his claims before a third party who will be more likely to believe management. While the agency argues on appeal that the AJ inappropriately relied upon the post-hearing report by one of the testifying witnesses that S1 had threatened retaliation against him after the hearing, this argument is without merit. The AJ did make reference to this post-hearing report, in the last sentence of a paragraph in her decision which followed her finding of retaliation and in which she stated that she felt compelled to comment on the "utterly deplorable conduct" of S1. In this paragraph, she recounted the various testimony offered by witnesses to S1's general hostility toward the EEO process. There is no indication, however, that the mention of an alleged additional, post-hearing threat of retaliation by S1 against a witness had any bearing on the AJ's ultimate finding that S1 had unlawfully retaliated against the complainant as claimed. Damages As an initial matter, we note that while the agency has challenged the award of damages to the complainant, it has limited its challenge on appeal to a claim that there is an insufficient causal connection between the agency's conduct and the harm suffered by the complainant to support the award, and, accordingly, we limit our review of the damages award to that narrow issue. The agency argues that the AJ improperly ignored evidence relating to the complainant's medical condition and substituted her own medical opinions for that of the complainant, his wife, and his physician. Our review of the record, however, reveals the agency's argument to be lacking in factual support. The agency alleges only two errors here--that the AJ ignored the testimony of the complainant and his physician regarding his back condition, and that the AJ ignored evidence that the stress in the complainant's marital relationship was caused by his back condition. As for the agency's first contention, the record shows that the complainant's back condition was relatively stable for the near ten year period prior to the arrival of S1 in the workplace. The complainant's physician testified both that the complainant's back disease was inherently degenerative in nature, and that he could see a "clear cause and effect relationship" between the increased workload S1 imposed upon the complainant, in violation of his medical restrictions, and the complainant's subsequent need to undergo surgery. Furthermore, the evidence of record does not support the agency's argument regarding the cause of difficulties in the complainant's marital relationship. While the agency claims that these difficulties were caused by a side-effect of the complainant's back surgery, the evidence of record does not support that assertion. In addition, even if the evidence did support the agency's contention that the surgery gave rise to these marital difficulties, as described above, the need for surgery was proven to be causally related to the agency's unlawful conduct, and, therefore, the agency is liable for any harm visited upon the complainant as a result of his need to undergo the emergency back surgery. Accordingly, we perceive no error on the AJ's part as to either of these issues. We pause to briefly address an error in the AJ's remedial award. The AJ found that the agency's unlawful conduct was the sole and proximate cause for the complainant's becoming permanently restricted to working no more than four hours a day, and that he was therefore entitled to an award of "front pay and future benefits" to compensate him for the difference between the salary and benefits he would have earned had he been able to work an additional four hours a day, and the workers' compensation payments and associated benefits he received, and would continue to receive, for the four hours a day he could not work. While the AJ's finding that the agency's conduct was sufficiently causally related to this financial harm to the complainant is supported by substantial evidence in the record, the award of "front pay" is not the proper remedy. Front pay is an equitable remedy that compensates an individual when reinstatement would be an appropriate remedy but is not possible. Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843, 850 (2001). By contrast, lost earning capacity represents a loss in one's future earning power and is distinct from the issue of front pay. Brinkley v. United States Postal Serv., EEOC Request No. 05980429 (Aug. 12, 1999). That is, an award for the loss of future earning capacity considers the effect that the individual's injury will have on his or her ability in the future to earn a salary comparable with what was earned before the injury. Id. Accordingly, the AJ's remedial award compensating the complainant for his lost earning capacity from the date of the AJ's decision to his sixty-fifth birthday, offset by the workers' compensation benefits paid to him for that period,4 is not properly described as an award of front pay, but as an award of future pecuniary damages. And, as the substance of that award is supported by substantial evidence in the record, it will not be disturbed on appeal. Conclusion After a careful review of the record, including arguments and evidence not specifically discussed in this decision, we discern no basis to disturb the AJ's finding of discrimination and accompanying remedial order. The findings of fact are supported by substantial evidence, and the AJ correctly applied the appropriate regulations, policies, and laws. Therefore, it is the decision of the Commission to REVERSE the agency's final order and REMAND the matter to the agency to take corrective action in accordance with this decision and the Order below. ORDER (D0403) The agency is ordered to take the following remedial action: 1. No later than sixty (60) calendar days after the date this decision becomes final, the agency shall determine the appropriate amount of back pay, with interest, and other benefits due to the complainant, pursuant to 29 C.F.R. § 1614.501, and pay this amount to the complainant. The complainant shall cooperate in the agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the agency shall issue a check to the complainant for the undisputed amount within sixty (60) calendar days of the date the agency determines the amount it believes to be due. The complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced below in the statement entitled "Implementation of the Commission's Decision." 2. No later than sixty (60) calendar days after the date this decision becomes final, the agency shall determine the appropriate amount of future pecuniary damages and other benefits due to the complainant, as described (incorrectly as "front pay and future benefits") in the "Remedies" portion of the AJ's decision, from the date of this decision through July 20, 2005, and pay this amount to the complainant. The complainant shall cooperate with the agency's efforts to compute the amount of future pecuniary damages due, and shall provide all relevant information requested by the agency. If there is a dispute regarding the exact amount of future pecuniary damages, the agency shall issue a check to the complainant for the undisputed amount within sixty (60) calendar days of the date the agency determines the amount it believes to be due. The complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced below in the statement entitled "Implementation of the Commission's Decision." 3. No later than sixty (60) calendar days after the date this decision becomes final, the agency shall pay the complainant $125,000.00 in nonpecuniary compensatory damages for the physical and emotional pain the complainant suffered as a result of the agency's unlawful actions. 4. No later than sixty (60) calendar days after the date this decision becomes final, the agency shall provide a minimum of sixteen (16) hours of training to the responsible management official--S1--identified as being responsible for the discrimination perpetrated against the complainant, on the requirements of the Rehabilitation Act, including but not limited to the rights of federal employees with disabilities to be reasonably accommodated in the workplace and to be free from retaliation for asserting their rights under EEO laws, and the obligations of management and personnel staff to insure that those rights are protected. 5. No later than sixty (60) calendar days after the date this decision becomes final, the agency shall consider taking disciplinary action against the responsible management official--S1--identified as being responsible for the discrimination perpetrated against the complainant. The agency shall report its decision to the Commission. If the agency decides to take disciplinary action, it shall identify the action taken. If the agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. 6. No later than sixty (60) calendar days after the date this decision becomes final, the agency shall pay the complainant's attorney's fees and costs in the amount of $90,383.15, plus interest calculated from forty (40) calendar days after the date the agency received the AJ's July 23, 2001, decision. The complainant, through counsel, shall also submit a request for attorney's fees and costs incurred in connection with the pursuit of this appeal in accordance with the Attorney's Fees paragraph set forth below. No later than sixty (60) calendar days after the agency's receipt of the attorney's fees and costs petition, the agency shall issue a final agency decision addressing the issue of attorney's fees and costs incurred by the complainant in the pursuit of this appeal. The agency shall submit a copy of the final decision to the Compliance Officer, as referenced below. If there is a dispute regarding the exact amount of attorney's fees and costs due, the agency shall pay the undisputed amount within sixty (60) calendar days of the date the agency determines the amount it believes to be due. The complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced below in the statement entitled "Implementation of the Commission's Decision." 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 backpay and other benefits due complainant, including evidence that the corrective action has been implemented. POSTING ORDER (G0900) The agency is ordered to post at its Redwood City, California, facility 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 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. 29 C.F.R. §§ 1614.407, 1614.408, 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, 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. 29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0701) The Commission may, in its discretion, reconsider the decision in this case if the complainant or the agency submits a written request containing arguments or evidence which tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z1199) If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request that the Court appoint an attorney to represent you and that the Court permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File A Civil Action"). For the Commission: Stephen Llewellyn Acting Executive Officer Executive Secretariat July 16, 2004 NOTICE TO EMPLOYEES POSTED BY ORDER OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION An Agency of the United States Government This Notice is posted pursuant to an Order by the United States Equal Employment Opportunity Commission dated ________ which found that a violation of the Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., has occurred at the United States Postal Service's Main Post Office in Redwood City, California (facility). Federal law requires that there be no discrimination against any employee or applicant for employment because of the person's RACE, COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, DISABILITY, or EEO ACTIVITY with respect to hiring, firing, promotion, compensation, or other terms, conditions or privileges of employment. The facility supports and will comply with such federal law and will not take action against individuals because they have exercised their rights under federal law. The facility was found to have violated the Rehabilitation Act when an employee was not provided with a reasonable accommodation for his disability, was harassed because of his disability, and was subjected to retaliation for participating in the EEO process. The facility was ordered to: (1) pay the employee back pay and other benefits; (2) pay the employee compensatory damages for physical and emotional harm caused by the agency's unlawful actions, including payment for lost future earning capacity; (3) provide Rehabilitation Act and EEO training for the responsible management official at the facility; (4) pay reasonable attorney's fees; and (5) post this notice. The facility will not in any manner restrain, interfere, coerce, or retaliate against any individual who exercises his or her right to oppose practices made unlawful by, or who participates in proceedings pursuant to, Federal equal employment opportunity law. 29 C.F.R. Part 1614 Footnotes 1 1. This suspension was later reduced through the grievance process to a letter of warning, subject to automatic expungement from the complainant's personnel file after six months. 2 2. The AJ did not find, and the record does not indicate, that these other individuals were in fact qualified individuals with disabilities as defined for purposes of the Rehabilitation Act. 3 3. We note that, as the agency has failed to put forth any substantive argument against the AJ's award of attorney's fees, other than contesting the finding of liability which gives rise to that award, we will not address the AJ's attorney's fees award in this decision. 444. 4 4. To the extent that complainant has received or will continue to receive workers compensation wage replacement benefits under the Federal Employees Compensation Act (FECA), the agency may offset his back pay and future pecuniary damages by this amount. See Finlay v. United States Postal Service, EEOC Appeal No. 01942985 (April 29, 1997).