Susan M. Morrison v. United States Postal Service
07A50003
04-18-06
.

 

Susan M. Morrison,
Complainant,

v.

John E. Potter,
Postmaster General,
United States Postal Service,
(Northeast Area), 
Agency.

Appeal No. 07A50003

Agency No. 1B-021-0045-01

Hearing No. 160-2003-08072X

DECISION


Following its September 24, 2004 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 complainant on the basis of harassment and discrimination based
on her sex.  The agency also requests that the Commission affirm its
rejection of the AJ's order to pay complainant $90,000.00 in compensatory
damages.  For the following reasons, the Commission REVERSES the agency's
final order.

Complainant, a PS-5 Distribution Clerk employed at the agency's General
Mail Facility in Boston, Massachusetts (“facility”), filed a formal
EEO complaint with the agency on December 1, 2001, alleging that the
agency discriminated against her in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.,
on the basis of sex (female) when she was subjected to a pattern of
sexual harassment by a co-worker from August 2000 to October 25, 2001.
Complainant also alleged discrimination on the bases of sex and in
retaliation for prior EEO activity when she was harassed by management
after she sought EEO counseling on June 27, 2001.

A review of the record indicates that complainant alleged that she was
the victim of harassment by a co-worker (W1), who repeatedly directed
profane language at her and verbally abused her about her work performance
and personal life.  Specifically, complainant alleged that W1 repeatedly
stated to her and others that she was a “lazy bitch” beginning in August
of 2000, spread rumors that complainant was dating a married co-worker and
an anonymous person left literature on safe sex and sexually transmitted
diseases with complainant's personal belongings.  Complainant further
alleged that the facility's former Manager, Distribution Operations (MDO)
and the current MDO failed to address her complaints of harassment and
the current MDO told complainant several times that she would convene
a meeting to discuss her complaints regarding W1, but the meeting never
occurred.  Further, complainant alleged that the former MDO took her off
a schedule in the spring of 2001 which allowed her to care for her child,
in July of 2001, “plotted” to send complainant out of the work area and
harassed complainant when she spoke with a co-worker about her personal
life.

Believing she was the victim of discrimination, complainant sought
EEO counseling and filed the aforementioned formal complaint.  At the
conclusion of the investigation, complainant was provided a copy of the
investigative report and requested a hearing before an AJ.  Following a
hearing before the AJ held on December 5, 2003 and January 29-30, 2004,
the AJ issued a bench decision finding discrimination.  

The AJ found that many of complainant's allegations regarding the acts
of harassment were credible.<1>  In so finding, the AJ noted that the
evidence indicated that complaint, W1 and another male co-worker worked
together for several years.  Complainant and W1's wife, who also worked at
for the agency, were friends and socialized together.  The AJ also found
that on several occasions in 2000, W1 asked complainant to date him,
although W1 denied this.  Complainant conceded that in 2000, she began
dating a married co-worker (W2) and rumors began at the facility that
complainant was dating W2.  The evidence established that complainant
and W2 would stop working and chat on the workroom floor, and the MDO
did little to keep W2 in his Unit.  Relations between complainant and W1
deteriorated, to the point where they stopped speaking to each other.
W1 admitted calling complainant a lazy bitch repeatedly to her face,
and also called her a lazy fu**ing bitch.  The MDO did not discipline
W1 for this incident but told him not to speak that way and to stay away
from complainant.  W1 admitted that for many months he directed profanity
and other names at complainant as she was not doing her work, and he
complained to the MDO every night about complainant's work performance.
The MDO spoke to complainant about her work performance on at least one
occasion.  The AJ noted that the current MDO spoke on several occasions to
W1 about the harassment, but it did not stop.  Complainant was notified
that she would be transferred to an automation unit, and subsequently
she filed an OWCP claim and ceased working.

The AJ made the following findings: (1) complainant was a credible
witness; (2) she suffered frequent verbal abuse from W1 which affected
her work performance and emotional health; (3) she reported the abuse to
the former and current MDOs; and (4) complainant's physician testified
that the abusive work environment affected her emotional health.  The AJ
also found that while complainant did not tell the former MDO until May
or June of 2001 about the harassment from W1, the MDO knew or should have
known about the verbal abuse and did not take effective action to stop it.
Further, the AJ noted that the MDO violated the confidentiality of the
EEO process by informing W1 that complainant was engaged in informal
counseling.  The AJ found that this in effect encouraged the verbal abuse,
and the testimony of the MDO was not credible as it was contradicted
by the testimony of W1.  AJ's Decision at 20.  Further, the AJ noted
examples of the ineffectiveness of the agency to stop the harassment,
indicating a disregard by employees for the MDO and complainant's right to
work in an environment free from harassment.  The AJ found that the MDO's
testimony that he was unaware of the harassment until June of 2001 to be
not credible.  However, the AJ did not find that the agency's removal from
her alternate work schedule to be harassment, as the agency articulated
legitimate, nondiscriminatory reasons for its action.  In addition, the
AJ found that complainant failed to demonstrate that she was subjected
to harassment and/or retaliation after she sought EEO counseling in June
of 2001.  However, the AJ found that the evidence supports a finding
that complainant was harassed due to her sex and the agency failed to
take effective and prompt action to end the harassment.  As remedies,
the AJ ordered the agency to pay complainant $90,000.00 in non-pecuniary
compensatory damages, payment of medical expenses not covered by OWCP
and proven future pecuniary damages.  The AJ also ordered the agency to
pay complainant back pay with interest and benefits from October 25,
2001, the date she stopped working at the agency, until the date of
the agency's final order.  The AJ also ordered the agency to pay $22,
300.00 in attorney's fees and the amount of $2,096.99 for expert fees
and other costs.

The agency's final order rejected and declined to implement the AJ's
decision.  On appeal, the agency argues that the AJ erred by: (1) finding
that complainant established that she was subjected to gender-based
harassment; (2) finding a causal relationship between the alleged acts of
harassment and complainant's suffering of post traumatic stress disorder;
(3) awarding an excessive award of non-pecuniary compensatory damages;
(4) awarding an excessive amount of attorney's fees, when a portion of
the fees submitted by complainant's counsel were duplicative; (5) ordering
the agency to pay the assessment of $2,069.99 in costs and fees; and (6)
ordering the agency to provide complainant with back and front pay, as she
voluntarily left the workplace on October 25, 2001 and did not return.
Complainant's counsel responded to the agency's contentions, urging the
Commission to uphold the AJ's decision and corrective action order.

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”  Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted).  A finding regarding whether or not discriminatory
intent existed is a factual finding.  See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).  An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
 
After a careful review of the record, we discern no basis to disturb
the AJ's finding of discrimination.  The findings of fact are supported
by substantial evidence, and the AJ correctly applied the appropriate
regulations, policies, and laws.  Addressing complainant's claims of
sex-based harassment, we note that it is well-settled that harassment
based on an individual's sex is actionable. See Meritor Savings Bank
FSB v. Vinson, 477 U.S. 57 (1986).  In order to establish a claim of
harassment under those bases, the complainant must show that: (1) she
belongs to the statutorily protected classes; (2) she was subjected
to unwelcome conduct related to her membership in those classes;
(3) the harassment complained of was based on sex and/or race; (4)
the harassment had the purpose or effect of unreasonably interfering
with her work performance and/or creating an intimidating, hostile,
or offensive work environment; and (5) there is a basis for imputing
liability to the employer. See Henson v. City of Dundee, 682 F.2d 897
(11th Cir. 1982). The harasser's conduct should be evaluated from the
objective viewpoint of a reasonable person in the victim's circumstances.
Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice
No. 915.002 (March 8, 1994); McLeod v. Social Security Administration,
EEOC Appeal No. 01963810 (August 5, 1999).

We find that substantial evidence of record supports the AJ's finding
that complainant satisfied all of these criteria, and that she was the
victim of sex-based harassment concerning several of the aforementioned
incidents between herself and W1.  W1's references to complainant as a
“lazy bitch” are sufficient to demonstrate his sex-based animus toward
her, and the evidence establishes that the harassment created a hostile
work environment.  We further find liability imputed to the agency as
complainant informed the past and current MDOs of the harassing behavior
of W1 and neither took effective action which terminated the harassment.
Generally, sufficient corrective action includes discipline, posting
notices, providing relevant training, taking proactive measures to
prevent future incidents of harassment, and reminding employees of their
obligations under the laws regarding discrimination. The fact that W1
continued to harass complainant after she informed the MDO indicates that
the agency's attempts to ameliorate the situation at the facility were
not sufficient.  We thus concur with the AJ's finding that complainant
was harassed by W1 due to her sex and the agency failed to take prompt
and effective corrective action to stop the verbal abuse by W1 directed
at complainant.<2>

Although not directly challenged by complainant on appeal, we nevertheless
concur with the AJ's finding that complainant failed to establish
retaliatory or sex-based harassment after she sought EEO counseling in
June of 2001.  AJ's Bench Decision at 23.  The Commission finds that the
evidence of record supports the AJ's finding that the agency's actions
alleged by complainant were not a continuation of the past harassment,
nor were they retaliatory.  Specifically, we concur with the agency's
finding that complainant's reassignment to an automation unit was not
harassment or retaliation for her EEO activity, as all manual clerks at
the facility were reassigned to automation units.  However, as we find
that the agency engaged in sex-based harassment against complainant from
August of 2000 to October 25, 2001, we next review the remedies ordered
by the AJ. 


A.  Compensatory Damages

1.  Non-Pecuniary Damages

Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant
who establishes unlawful intentional discrimination under either Title VII
of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e
et seq. or Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. § 791 et seq. may receive 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).

In his bench decision, the AJ noted that complainant's psychiatrist (P1)
testified at the hearing that she began treating complainant in November
of 2001.  P1 stated that when treatment began, complainant had symptoms
of anxiety and depression, had trouble eating and sleeping as well
as suffering from headaches and gastrointestinal distress.  P1 further
stated that it was difficult for complainant to leave her house and that
she was not functioning well enough to work.  P1 initially diagnosed
complainant with adjustment disorder but later changed her diagnosis to
post traumatic stress disorder (PTSD), exacerbated by the litigation of
her claim.  P1 further stated that the workplace harassment complainant
experienced could cause PTSD, and the AJ found her to be a credible
witness.  AJ's Corrective Action at 3.  The AJ found that complainant had
no prior history of the symptoms she exhibited since the harassment began,
nor did she have a prior history of receiving mental health treatment.
Based on the uncontroverted testimony of P1 and complainant's testimony
of the effect of the harassment, and taking into consideration the awards
of compensatory damages in cases somewhat similar to the instant case,
the AJ determined that an award of $90,000.00 in non-pecuniary damages
was reasonable.

After a thorough review of the record, we find that the AJ's conclusion
that complainant began suffering the aforementioned symptoms after
the harassment by W1 began to be supported by substantial evidence.
Further, we find that the record supports a finding that the harassment
continued for over one year, and complainant's psychological trauma
resulting from the harassment continued well past the date complainant
resigned from the agency.  As such, we agree with the AJ that an award
of $90,000.00 is appropriate to compensate complainant for her pain
and suffering during the relevant time period.  We point out that
non-pecuniary compensatory damages are designed to remedy a harm and
not to punish the agency for its discriminatory actions.  See Memphis
Community School Dist. v. Stachura, 477 U.S. 299, 311-12 (1986) (stating
that compensatory damages determination must be based on the actual harm
sustained and not the facts of the underlying case).  The Commission
notes that this award is not "monstrously excessive" standing alone,
is not the product of passion or prejudice, and is consistent with
the amount awarded in similar cases. See Leatherman v. Department of
the Navy, EEOC Appeal No. 01A12222 (December 14, 2001)($100,000.00
awarded where discrimination caused complainant to suffer from suicidal
thoughts, inability to sleep, chest pains, migraine headaches, anxiety,
depression, and she had to be hospitalized on two occasions); Santiago
v. Department of the Army, EEOC Appeal No. 01995684 (October 14, 1998)
($125,000.00 awarded where sex and age-based discrimination by supervisor
caused complainant depression and other emotional and mental disorders,
severe chest and stomach pains, digestive problems, and incidents of
shortness of breath); Cook v. United States Postal Service, EEOC Appeal
NO. 01950027 (July 17, 1998)($130,000.00 awarded where hostile work
environment caused employee to suffer from Atypical Paranoid Disorder).

2.  Future Pecuniary Damages

The AJ awarded complainant future pecuniary damages to cover the cost of
psychotherapy sessions (at $120.00 per hour) and other medical treatment
arising out of the discrimination for two (2) years from the date of
the agency's final order.  As the agency has not challenged the damages
awarded by the AJ for psychological treatment, it will be allowed by
the Commission.  However, we find there is no award of future medical
co-pay amounts for other medical treatments or future sick leave which
is unrelated to the acts of discrimination, as these claims are highly
speculative and inadequately supported by medical documentation.  

The AJ then found that complainant is entitled to an award for the loss
of future earning capacity, including benefits, for two (2) years from
the date of the agency's final order.  The AJ noted that complainant's
psychologist stated that she could not return to work with the agency due
to possible trauma, but she would be undergoing vocational training for
two (2) years while receiving workers compensation.  Where complainant
has shown that her future earning power has been diminished as a result of
the agency's discrimination, the Commission has awarded future pecuniary
damages for the loss of future earning capacity.  Brinkley v. United
States Postal Service, EEOC Request No. 05980429 (August 12, 1999);
Hernandez v. United States Postal Service, EEOC Appeal No. 07A30005
(July 16, 2004).  Proof of entitlement to loss of future earning
capacity involves evidence suggesting that the individual's injuries
have narrowed the range of economic opportunities available to her.
Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652 (July
17, 1995). Generally, the party seeking compensation for loss of earning
capacity needs to provide evidence which demonstrates with reasonable
certainty or reasonable probability that the loss has been sustained.
Id. (citing Annotation, Evidence of Impaired Earnings Capacity, 18
A.L.R. 3d 88, 92 (1968)).  
In the instant case, we note that complainant's psychologist stated that
complainant could not return to work for the agency due to increased
trauma, and stated that during the time he was treating complainant,
her symptoms were so significant that she could not work.  Therefore,
upon review of the record we find complainant has presented medical
evidence establishing that she was unable to return to work as a
direct result of the unlawful discrimination and suffered a loss in her
future earning capacity.  As a remedy, we order the agency to calculate
complainant's loss of future earning capacity for two (2) years from
the date of the agency's final order.  In determining complainant's lost
earning capacity, the calculations should include complainant's wages,
agency contributions to health benefits and life insurance premiums, and
agency contributions to Civil Service Retirement or the Federal Employees
Retirement System, and the Thrift Savings Plan.  Finlay v. United States
Postal Service, EEOC Appeal No. 01942985 (April 29, 1997).  As further
guidance, in the present case we note that on remand the agency should
begin calculating complainant's loss of future earning capacity using
her annual rate of pay in effect at the time she was determined unable
to return to work, which was $43,218.00.  Any future pecuniary damages
paid to complainant must be offset by the amount of any wage replacement
benefits she received from the Office of Workers Compensation Programs
(OWCP) and any fringe benefits which have been continued under OWCP.
As stated by the AJ, under Title VII, awards for loss of future earning
capacity are subject to the statutory cap for compensatory damages-in
this case $300,000.00. 42 U.S.C. § 1981a(b)(3)(D). Since complainant was
previously awarded $90,000.00 in non-pecuniary damages, complainant's
award for future pecuniary losses cannot exceed $210,000.00.

B.  Back Pay 

The AJ also found that complainant was entitled to back pay with interest
and benefits from October 25, 2001, the date she stopped at the agency,
until the date of the agency's final order.  The AJ found that back
pay was warranted as the evidence demonstrated that the complainant's
inability to work was causally connected to the discrimination she
encountered.  The AJ found that the amount of back pay should be offset by
the amount of any wage replacement benefits which complainant received
from OWCP.  The agency disputes the award of back pay, stating that
complainant voluntarily absented herself from the workplace on October
25, 2001 and did not return.  The agency also alleged that at the time
complainant left the agency, the harassment had ceased and her work
situation was improving.  However, the AJ found in his decision that
complainant's testimony substantiated her claim that she was subjected
to a hostile work environment from August 2000 until October 2001, when
she left work.  The record supports the AJ's finding that complainant's
inability to work following her resignation from the agency was causally
connected to the harassment she suffered at the agency.  As the AJ
found that complainant was subjected to a hostile work environment when
she left her position at the agency and she could not work upon her
resignation, we concur with the AJ's finding that back pay is warranted
in the instant case as complainant's inability to work after October of
2001 was causally connected to the discrimination.  We concur with the
AJ's finding that complainant is not entitled to recover leave taken
due to the discrimination, as it was restored under OWCP.

C.  Attorney's Fees and Costs

The AJ ordered the agency to pay attorney's fees in the amount of
$22,300.00 (representing $8,900.00 and $13,400.00 to the two attorneys
who represented complainant).  The AJ noted that the agency did not
dispute the hourly rate charged by counsel but did dispute the total
number of hours expended on the case.  The AJ noted that complainant
requested $25,000.00 in attorney's fees, but the agency alleged that
the total fees should be reduced as complainant did not prevail on her
retaliation claim and the appearance of multiple counsel was duplicative.
The AJ rejected the agency's claim that the attorney's fees should be
reduced as complainant did not prevail on the retaliation claim, as the
burdens of proof for the allegation which was unsuccessful was virtually
identical to the burdens for the successful claim.  However, the AJ did
find that the agency's argument that the appearance of multiple counsel at
the hearing was duplicative had merit.  Regarding the unsuccessful claims,
we note that the agency's allegations have been previously considered by
the AJ, and found to be closely intertwined with the successful claims.
As this finding is supported by the record, we reject the agency's
contention.  Further, we find that the AJ's reduction in the hours
requested by counsel is warranted.  As such, we order the agency to pay
attorney's fees in the amount of $22,300.  In addition, we concur with
the AJ that complainant is entitled to $2,096.99 for costs associated
with the litigation of the instant case.

Therefore, after a careful review of the record, including arguments
and evidence not specifically discussed in this decision, the Commission
affirms the portion of the agency's final order finding no harassment or
retaliation due to complainant's EEO activity, but reverses the portion
of the decision finding no sex-based harassment, and remands the matter
to the agency to take corrective action in accordance with this decision
and the Order below.

      ORDER

To the extent it has not already done so, the agency is ordered to take
the following remedial action: 
   
1.  Within sixty (60) calendar days of the date of this decision, the
agency shall determine the appropriate amount of back pay, with interest
and other benefits, due to complainant for the period from October 25,
2001 to the date of the agency's final order, pursuant to 29 C.F.R. §
1614.501. 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 thirty (30)
calendar days of the date the agency determines the amount it believes
to be due. 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 in
the statement entitled "Implementation of the Commission's Decision." 
   
2. Within sixty (60) calendar days of the date that this decision becomes
final, the agency shall tender to complainant non-pecuniary compensatory
damages in the amount of $90,000.00. 

3.  Within sixty (60) days of the receipt of documentation, the agency
shall pay future pecuniary damages for medical expenses she incurred
as a result of the agency's sex-based harassment, which were not paid
for by the Office of Workers Compensation Programs.  The agency shall
be responsible only for payment of medical expenses by complainant's
treating psychologist (P1) or any other treating medical professional
for treatment relating to the acts of discrimination for a period of two
(2) years from the date of the agency's final order.

4.  Within sixty (60) calendar days of the date this decision becomes
final the agency shall calculate complainant's entitlement to future
loss of earning capacity as specified in the Administrative Judge's
decision on corrective action.  The agency shall pay complainant the
determined amount of future loss of earning capacity, plus benefits,
based on her final salary with the agency for a period of two (2)
years from the date of the agency's final order and provide detailed
documentation and explanation of all calculations made to complainant.
Any future pecuniary damages paid to complainant must be offset by the
amount of any wage replacement benefits she received from the Office of
Workers Compensation Programs (OWCP), any fringe benefits which have been
continued under OWCP and any wages she earned working in any position
following vocational training for a period of two (2) years from the
date of the agency's final order.  Since complainant has been awarded
$90,000.00 in non-pecuniary damages, complainant's award for future
pecuniary losses cannot exceed $210,000.00.  

5.  Within sixty (60) days of the issuance of this decision, the agency
shall provide EEO training to the facility's Manager of Distribution
Operations and other relevant members at the facility such as W1 with
respect to their duties and obligations under Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.,
with an emphasis on harassment.  The Commission does not consider training
to be a disciplinary action.

6.  Within sixty (60) days of the issuance of this decision, the agency
will consider taking disciplinary action against the facility's Manager
of Distribution Operations and W1 for their conduct which was found to
be discriminatory.  The agency shall report its decision.  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. 

7.  Within thirty (30) calendar days of the date that this decision
becomes final, if it has not already done so, the agency shall pay
complainant's attorney the sum of $24,396.99, for reasonable attorney's
fees and costs.

8.  The Commission finds that complainant is entitled to reasonable
attorney's fees on those issues where she prevailed upon appeal.  Within
thirty (30) calendar days of the date that this decision becomes final,
if it has not already done so, complainant's attorney shall submit to
the agency a petition for reasonable attorney's fees and costs for those
issues where complainant prevailed upon appeal.

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 verifying
that the corrective action has been implemented.

            POSTING ORDER (G0900)

The agency is ordered to post at its General Mail Facility in Boston,
Massachusetts 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 (H1092)

If complainant has been represented by an attorney (as defined by
29 C.F.R. § 1614.501 (e) (1) (iii)), 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.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:

 1. The appellate decision involved a clearly erroneous interpretation
 of material fact or law; or

 2. The appellate decision will have a substantial impact on the policies,
 practices, or operations of the agency.

Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).  All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036.  In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. § 1614.604.  The request or opposition must also include
proof of service on the other party.  

Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request.  Any supporting documentation
must be submitted with your request for reconsideration.  The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances.  See 29 C.F.R. § 1614.604(c).  

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)

You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision.    If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title.  Failure to do so may result in the dismissal of your
case in court.  "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint. 

RIGHT TO REQUEST COUNSEL (Z1199)

If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security.  See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court.  Filing a request for an attorney does not extend your time
in which 






to file a civil action.  Both the request and the civil action must be
filed within the time limits as stated in the paragraph above ("Right
to File A Civil Action"). 

FOR THE COMMISSION:


______________________________
Carlton M. Hadden, Director
Office of Federal Operations 


______04-18-06____________
Date     















 1 The AJ found that complainant's allegations regarding  the MDO's
 alteration of her schedule and plotting to move her out of the work area
 were not evidence of harassment.  AJ's Bench Decision at 14.  The AJ also
 found that while the MDO did speak with a co-worker about complainant's
 personal life, this incident did not aggrieve complainant. Id.

2 However, while we find complainant established sex-based harassment,
she did not proffer any evidence which demonstrates that the harassment
culminated in any tangible employment action.  In so finding, we note
that the record supports the AJ's finding that the removal from her
alternate work schedule was not harassment by the agency.  Nor did the
AJ find any evidence to support complainant's allegation that the MDO
“plotted” to send her to another work area.