Constantine Economou, ) Appellant, ) ) v. ) Appeal No. 01983435 ) Agency Nos. AUFS9506F0120, Louis Caldera, ) AUFS9506F0130, Secretary, ) AUFS9506F0140 Department of the Army, ) Hearing Nos. 160-96-8300X, Agency. ) 160-96-8301X, ______________________________) 160-96-8302X DECISION On March 30, 1998, Constantine Economou (appellant), by and through his attorney, timely appealed the final decision of the Department of the Army (agency), dated February 25, 1998, concluding he had not been discriminated against in violation of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq., and the Rehabilitation Act of 1973, as amended, 29 U.S.C. §791 et seq. This appeal is accepted in accordance with the provisions of EEOC Order No. 960.001. The record establishes that on August 16, 1993, January 4, 1994, and September 24, 1994, respectively, appellant filed a series of three equal employment opportunity (EEO) complaints against the agency. After many procedural disputes between the parties, including an appeal to this Commission from the dismissal of some of the issues raised in appellant's complaints, the agency accepted the complaints for investigation. At the conclusion of the investigation, appellant requested an administrative hearing before an Equal Employment Opportunity Commission (EEOC) administrative judge (AJ). The three complaints were consolidated for hearing. During the initial phase of the hearing, the AJ, with the agreement of the parties, consolidated and redefined the multiple issues raised in the three complaints. According to the AJ, the issues to be addressed at the hearing were whether the agency's New York District Commander unlawfully retaliated against appellant for his prior EEO activity and, with respect to appellant's second and third complaints, also discriminated against him on the bases of his national origin (Greek) and/or disabilities, when: (1) in April and May 1993, the District Commander used secret committees to reorganize appellant's division without his knowledge, input or concurrence, which resulted in sections of the Construction Division being removed and reestablished in other divisions; (2) the District Commander allowed appellant's leave records to be left in plain view of visitors in the District's legal office; (3) appellant received a lower rating ("fully successful") on his June 30, 1993 performance evaluation than he believed his performance warranted, and the District Commander refused to discuss it with appellant or consider upgrading it; (4) the District Commander interfered with appellant's supervisory authority by lowering the performance rating of one of appellant's employees without his knowledge or consent; (5) the District Commander interfered with the timely payment of appellant's workers' compensation claim for injuries sustained at work on May 25, 1993; (6) the District Commander rated appellant on the supervision of four area offices which were not under his supervision at the time; (7) the District Commander blamed appellant for unsubstantiated deficiencies in conducting various briefings, and mischaracterized appellant as uncommunicative, uncooperative and overly sensitive to criticism; (8) in May 1994, after his return to work following a prolonged absence due to a work-related injury, the District Commander allegedly threatened and disparaged appellant, confined him in a separate office in the executive suite, directed him to undergo a series of psychiatric examinations, and embarrassed him by providing false information about him; (9) on June 9, 1994, the District Commander shouted in appellant's face, triggering another period of sick leave and a workers' compensation claim; (10) the District Commander refused to allow appellant to resume his duties as chief of the Transportation Division when he returned to work; and (11) the District Commander ignored appellant's requests to restore his annual leave which had been forfeited because appellant had to use sick leave. On December 22, 1997, following a hearing at which nine witnesses testified, the AJ issued a decision concluding appellant had failed to establish unlawful national origin or disability discrimination with respect to any of his allegations. The AJ also found that appellant had failed to establish unlawful retaliation with regard to allegations nos. 1, 2, 4 and 5. On appeal appellant does not challenge these conclusions, and they shall, therefore, be affirmed by the Commission without further discussion. However, the AJ went on to conclude that the weight of the evidence established that appellant was the victim of unlawful retaliation for his prior EEO activity with respect to allegations nos. 3 and 6-11. To remedy appellant for its retaliatory conduct, the AJ recommended: (1) that appellant's 1993 performance appraisal rating be raised to an "exceptional" and he receive the appropriate monetary award for that rating, as well as the retroactive step increase, with backpay, which he would have allegedly received for an "exceptional" rating; (2) that appellant be reimbursed for 292 hours of leave without pay (LWOP) and have the sick leave restored which he was forced to take as a result of the agency's unlawful actions;<1> (3) that appellant be reimbursed for any unpaid medical expenses (approximately $2,000) which he incurred as a result of the agency's unlawful actions; and that appellant be awarded the amount of $300,000 in compensatory damages for the "emotional distress and humiliation" he suffered as a result of the agency's retaliatory actions. On February 25, 1998, the agency issued its final decision accepting the AJ's conclusion that no discrimination or retaliation occurred with regard to issues nos. 1, 2, 4 and 5, but rejecting the AJ's finding of unlawful retaliation with respect to appellant's remaining allegations. It is from this decision that appellant now appeals. The record establishes that, at the time the matters at issue arose, appellant was employed by the agency as Chief of the Construction Division, GM-15, New York District, U.S. Army Corps of Engineers.<2> An employee of the agency since 1972, he assumed the Chief position on November 1, 1992, as a direct result of the successful prosecution of an earlier EEO complaint.<3> In June 1992, a new Commander assumed control of the New York District. It was this individual's predecessor who was found to have unlawfully retaliated against appellant in the case which resulted in his retroactive promotion to the Construction Chief position. However, the task of implementing the relief awarded appellant as a result of that prior EEO complaint (retroactive promotion) fell on the new District Commander, who appellant asserted was responsible for the unlawful retaliation in the instant matters. It is undisputed that the new District Commander was fully aware of appellant's prior EEO activity. Appellant alleged that the new District Commander let him know from the beginning that he thought, "EEO complaints are for GS-5's not for Chiefs," and that he allegedly said, "I don't want to see anymore EEO complaints from you and that I'm going to really lean on you." The District Commander denied making these statements and testified that he harbored no retaliatory animus towards appellant. However, at the hearing, the District Commander admitted to being the author of a handwritten note, made on or about June 9, 1994, in which he made the following statement about appellant: "I believe he attempts to use every system at his disposal to avoid work--EEO complaints, disability." Complainant's Hearing Exhibit 10. On June 30, 1993, appellant received his first performance appraisal from the new District Commander, encompassing the period of June 1992 to June 1993. In this appraisal, appellant received an overall rating of "fully successful." Appellant asserted he should have received an "exceptional" rating, noting that, prior to the tenure of new District Commander, he had always received an "exceptional" rating. In the justification section of the performance appraisal, appellant pointed to the fact that he was criticized for his supervision of the work of four area offices. However, these offices were not under appellant's supervision during the majority of the rating period as a result of the reorganization which had been effectuated by the District Commander. Appellant also noted that he was criticized for the fact that the "Westhampton Beach project" was not started as scheduled. However, appellant produced evidence that he was not involved with this project and was out on extended leave during the construction of the project. The record establishes that on May 25, 1993, appellant fell at work, resulting in a severe concussion, as well as significant back and neck injuries. Due to these injuries, he was out of work for nearly a year, returning on May 17, 1994. During his prolonged absence, appellant provided the agency with medical documentation supporting his inability to work, which included references to a recurrence of Post Traumatic Stress Disorder (PTSD), which apparently originated from a 1991 motor vehicle accident. Appellant's claim for workers' compensation benefits as a result of this condition was approved. The record indicates that the Office of Workers Compensation Programs (OWCP) arranged for appellant to have four separate medical examinations, two conducted by board-certified psychiatrists and the other two by neurologists. The medical findings of all four physicians supported appellant's total disability. Upon his return to work in May 1994, the District Commander did not allow appellant to return to his duties as Chief of the Construction Division. Appellant alleged that the District Commander told him that he would have to be observed because, referring to appellant's PTSD, he might be a danger to himself or others. Therefore, appellant was told to move into the office adjoining the District Commander's office, rather than his old office, so that he could be kept under observation. Appellant said he was also told that there would be a 30-day transition period, where he was not to interact with other members of the Construction Division. The District Commander conceded that appellant was not immediately returned to his former duties or office upon his return from sick leave. Rather, the District Commander explained that he did not want appellant to interrupt the flow of the work of the Construction Division, so he imposed a 30-day transition period to bring appellant up-to-date on the work of the division during his year-long absence. During the transition period, the District Commander ordered appellant to obtain a fitness-for-duty examination, including a psychiatric evaluation. He testified that he did so in light of the fact that appellant's lengthy absence was attributed in large part to his PTSD, and he thought that "a second opinion was prudent" on appellant fitness to return to the stressful responsibilities of the Construction Division Chief. On June 9, 1994, the District Commander entered appellant's office and angrily berated him for not keeping a scheduled appointment for a psychiatric evaluation. In fact, appellant had attempted to keep this appointment, but due to a scheduling error on the part of the agency, was told that he did not have an appointment on that day. Appellant alleged that the District Commander would not let him explain, but continued to berate him and angrily slam his newspaper on appellant's desk. Appellant alleged he became physically ill as a result of this encounter, and felt he might have a heart attack. He was accompanied to the infirmary by a coworker, and later was picked up by his wife and seen by his doctor. The District Commander admitted to an angry exchange with appellant, but stated that it was over appellant's failure to comply with a directive to meet with several other agency employees concerning the reorganization of appellant's division. While the District Commander stated that they both raised their voices, and acknowledged slamming a newspaper on appellant's desk, he denied yelling at appellant in a menacing fashion. As a result of this incident, appellant was medically unable to return to work and filed a workers' compensation claim for a recurrence of his PTSD. This workers' compensation claim was denied by OWCP because of insufficient evidence of an injury. In July 1994. appellant said he attempted to return, but was told by the District Commander not to come back. The District Commander denied hearing from appellant about returning to work until December 1994. Appellant asserted that he was forced to take 1020 hours of leave,<4> because he was not permitted to return to work. On December 4, 1994, appellant received a memorandum from the District Commander, proposing to remove him as Chief of the Construction Division. The notice stated that upon learning appellant was ready to return to work, his medical records, job description and performance appraisals were sent for an evaluation by a psychiatrist, specializing in occupational medicine, at the Walter Reed Army Hospital. The notice stated that the psychiatrist offered the opinion that it was "unlikely" that appellant would be able to return to his position as Chief of the Construction Division in the "foreseeable future." The psychiatrist was quoted as further indicating that he: ...would not recommend that [appellant] return to a position which requires engineering judgement and management skills unless his psychiatrist specifically stated that his insight, judgement, memory and concentration have returned to pre-morbid levels (i.e., those expected of an engineer with professional registration). Additionally, the psychiatrist should state that [appellant] is not a threat to himself or others due to his reported suicidal ideation. In response, in early 1995, appellant met with the Brigadier General and presented him with the findings of three independent psychiatrists who all stated that appellant was fit to return to work. No psychiatric impairment was discerned by any of the three psychiatrists, including no indication of depression or suicidal ideation. The doctors noted appellant was not taking any medication, although he had reported taking Xanax, described as a "mild anti-anxiety medication," the year before. In response, the Brigadier General offered appellant a psychiatric fitness-for-duty examination, at agency expense, to determine his "ability to perform [his] duties so as to protect [his] health and well being." In June 1995, the psychiatrists at Walter Reed Army Medical Center, who conducted the examination of appellant, advised the agency of their conclusion that appellant was psychiatrically fit for duty. No symptoms of depression, anxiety or psychosis were noted. As a result, the Brigadier General returned appellant to his position as Chief of the Construction Division, effective June 26, 1995. On that same day, the District Commander transferred to another position and no longer supervised appellant's work. After a careful review of the record in its entirety, the Commission finds that the AJ's recommended decision supporting his finding of unlawful retaliation with regard to allegations nos. 3 and 6-10 sets forth the relevant facts and properly analyzes the appropriate regulations, policies and laws. Based on the evidence of record, the Commission discerns no basis to disturb the AJ's conclusion that the agency's actions described by these allegations were motivated, as least in part, by retaliatory animus. The Commission notes that the AJ made specific credibility findings in support of his conclusions in this case regarding the testimony of appellant and key management witnesses. These credibility determinations are entitled to deference due to the AJ's first-hand knowledge, through personal observation, of the demeanor and conduct of the witnesses at the hearing. Esquer v. United States Postal Service, EEOC Request No. 05960096 (September 6, 1996); Willis v. Department of the Treasury, EEOC Request No. 05900589 (July 26, 1990). The Commission, after an independent review of the record, found no significant evidence to contradict the AJ's credibility findings. Accordingly, it is the decision of the Equal Employment Opportunity Commission to REVERSE that portion of the agency's final decision which rejected the AJ's findings of unlawful retaliation with respect to appellant's allegations nos. 3 and 6-10. With regard to allegation no. 11, the AJ's decision failed to specifically address the evidence supporting his finding of retaliation with regard to this issue. The Commission, upon its own review of the record, finds that this matter, concerning the restoration/reimbursement of appellant's leave, should not be addressed as a separate allegation of retaliation, but rather as an element of the remedial action which the agency will be ordered to undertake. Finally, the Commission will address the AJ's recommended award of non-pecuniary compensatory damages in the amount of $300,000 for the emotional distress caused appellant by the agency's retaliatory actions. In this regard, we note that the AJ found that appellant credibly testified to the emotional injury he suffered, which was manifested by feelings of stress, anxiety, humiliation and sleeplessness. Based on this evidence, we concur with the finding that the retaliatory actions of the agency were the proximate cause of some emotional distress for appellant, for which he is entitled to be compensated. The Civil Rights Act of 1991 authorizes awards of compensatory damages for intentional discrimination in violation of Title VII. 42 U.S.C. §1981a. The Supreme Court has held that compensatory damages are recoverable in the administrative process. West, Secretary of Veterans Affairs v. Gibson, No. 98-238, 1999 WL 380643 (U.S. June 14, 1999). See also, Jackson v. United States Postal Service, EEOC Appeal No. 01923399 (November 12, 1992), request for reconsideration denied, EEOC Request No. 05930306 (February 1, 1993); Turner v. Department of the Interior, EEOC Appeal No. 01956390 (April 28, 1998); Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995) (compensatory damages in a settlement agreement). In addition to an award for past pecuniary losses incurred because of discrimination, compensatory damages are also available for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to character and reputation, loss of health, and other non-pecuniary losses. See Enforcement Guidance: Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. N915.002 (July 14, 1992) (hereinafter referred to as "Enforcement Guidance: Compensatory and Punitive Damages"). For employers of more than 500 employees, Section 1981a(b)(3) limits the total amount of non-pecuniary and future pecuniary compensatory damages that may be awarded to a complaining party to $300,000. 42 U.S.C. §1981a(b)(3)(D). There are no precise formulas for determining the amount of damages for non-pecuniary losses. An award of compensatory damages for non-pecuniary losses, including emotional harm, should reflect, however, the extent to which appellant has established that the agency's actions directly or proximately caused the harm ("the nexus"), and/or the extent to which other factors also may have caused the harm. In addition, non-pecuniary damages must be limited to the sum necessary to compensate the injured party for actual harm, even where the harm is intangible, and should take into account the 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), request for reconsideration denied, EEOC Request No. 05940927 (December 11, 1995); Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995). The Commission notes that, for a proper award of non-pecuniary damages, the amount of the award should not be "monstrously excessive" standing alone, should not be the product of passion or prejudice, and should be consistent with the amount awarded in similar cases. Wooten v. Department of Agriculture, EEOC Appeal No. 01960727 (August 28, 1997). In Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993), the Commission described the type of objective evidence considered relevant when assessing the merits of a complainant's request for emotional distress damages: [E]vidence should have taken the form of a statement by appellant describing her emotional distress, and statements from witnesses, both on and off the job, describing the distress. To properly explain the emotional distress, such statements should include detailed information on physical or behavioral manifestations of the distress, information on the duration of the distress, and examples of how the distress affected appellant day to day, both on and off the job. In addition, the agency should have asked appellant to provide objective and other evidence linking . . . the distress to the unlawful discrimination . . . . Objective evidence may include statements from the complainant concerning his/her emotional pain or suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, injury to character or reputation, injury to credit standing, loss of health, and any other non-pecuniary losses that are incurred as a result of the discriminatory conduct. Statements from others, including family members, friends, and health care providers could address the outward manifestations or physical consequences of emotional distress, including sleeplessness, anxiety, stress, depression, marital strain, humiliation, emotional distress, loss of self-esteem, excessive fatigue, or a nervous breakdown. Objective evidence also may include documents indicating a complainant's actual out-of-pocket expenses related to medical treatment, counseling, and so forth, related to the injury allegedly caused by discrimination. See Enforcement Guidance: Compensatory and Punitive Damages, supra. In determining damages, the agency is only responsible for those damages that are clearly shown to be caused by the alleged discriminatory conduct, not for any and all damages in general. See Rountree v. Department of Agriculture, EEOC Request No. 05950919 (February 15, 1996). In this case, the sole evidence presented by appellant concerning the emotional harm he suffered as a result of the agency's retaliatory actions was his own testimony that he experienced significant and ongoing feelings of humiliation, anxiety, depression, stress and sleeplessness. In addition, while appellant presented no statements from his health care providers in support of his claim for compensatory damages, the record does contain some medical records which were submitted to the agency during the events at issue. In this regard, the Commission notes that evidence from a health care provider is not a mandatory prerequisite for recovery of compensatory damages for emotional distress. Bernard v. Department of Veterans Affairs, EEOC Appeal No. 01966861 (July 17, 1998). Appellant's own testimony, along with the circumstances of a particular case, can suffice to sustain his burden. Nonetheless, the Commission has held that the absence of supporting evidence may affect the amount of damages deemed appropriate in specific cases. Id. After careful consideration of all the evidence of record, as well as the arguments of both parties on appeal, it is the decision of the Commission that, given Commission awards in similar cases, the AJ's award of $300,000 in non-pecuniary damages in this case was excessive. For example, the evidence concerning the severity and duration of the harm to appellant caused by the agency does not rise to the level of the evidence of harm supporting the damage awards in Finlay v. United States Postal Service, EEOC Appeal No. 01942985 (April 29, 1997) ($100,000 award in non-pecuniary 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, recurring nightmares, a damaged marriage, stomach distress and headaches.); McCann v. Department of the Air Force, EEOC Appeal No. 01971851 (October 23, 1998) ($75,000 award in non-pecuniary damages for psychological injuries, including a recurrence of PTSD, which had resulted in the need for more than three years of continuing therapy after the agency's discriminatory actions. At the time of her hearing, complainant had been diagnosed with "chronic" depression, and was taking a number of medications, including Prozac, Haldol and Trazadone.); Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995) ($75,000 award in non-pecuniary damages for a deterioration in appellant's medical and emotional condition resulting in his disability retirement. Aggravation of asthma, panic attacks, insomnia, digestive problems, loss of spirit, social withdrawal, feelings of hostility and irritability, and loss of libido.); and Wallis v. United States Postal Service, EEOC Appeal No. 01950510 (November 13, 1995) ($50,000 award for pain, suffering and emotional distress where appellant produced sufficient evidence, including supporting statements from his psychiatrist, to establish that the agency's acts of reprisal substantially contributed to the worsening of appellant's mental condition to the point where he had to take anti-depressive medication, and the effects were expected to last at least seven years). Most significantly in the present case, appellant has provided no evidence that he continued to suffer any residual effects of the agency's retaliatory actions after his return to work in June 1995. At that time, the District Commander found responsible for the agency's retaliatory actions transferred to another position and no longer had any contact with appellant. The psychological evaluations of appellant performed in early 1995 revealed no evidence of mental or emotional impairment, with findings that any prior symptoms of depression or recurrent anxiety had been resolved. During his June 1995 psychiatric evaluation, appellant described his own general mood as "great." The Commission also notes that the record reveals that appellant's prior symptoms of depression and anxiety can be ascribed, at least in part, to causes other than the agency's retaliatory actions. Appellant's PTSD had its roots in a 1991 automobile accident which was non-work related. He had a recurrence of the PTSD between May 1993 and May 1994, after falling off a chair at work, resulting in a severe concussion and neck and back injuries. The weight of the evidence indicates that any symptoms of depression, anxiety or sleeplessness experienced by appellant prior to May 1994<5> were the result of factors other than the agency's retaliatory actions. In sum, the agency's actions appear to be the proximate cause of at least some of the documented psychological problems (mild depression and anxiety, for which appellant was prescribed Xanax) for a period starting in May 1994 and ending in early 1995, when appellant submitted psychiatric opinions that he no longer experienced any symptoms of PTSD or any other emotional or mental impairment.<6> Therefore, unlike the complainants in McCann and Wallis, who similarly experienced a recurrence of a prior mental/emotional illness as a result of their employer's actions, appellant's symptoms were less severe and much shorter in duration. Based on the more limited duration and extent of the emotional harm experienced appellant, but also recognizing that appellant testified to the additional harm caused by the ongoing humiliation he felt as a result of the agency's actions and the damage to his reputation, the Commission finds that he should be awarded the sum of $35,000 in non-pecuniary compensatory damages. See, e.g., Feris v. Environmental Protection Agency, EEOC Appeal No. 01983167 (September 18, 1998) ($35,000 for agency's failure to accommodate complainant's physical disability over a period of time which resulted in tension, damage to self-esteem, anxiety, anger and sleeplessness). Accordingly, it is the decision of the Equal Employment Opportunity Commission to REVERSE the agency's final decision which rejected the AJ's finding of unlawful retaliation with respect to appellant's allegation nos. 3 and 6-10. In order to remedy appellant for its retaliatory actions, the agency shall, comply with the following Order. ORDER The agency is ORDERED to take the following remedial action: (A) Within thirty (30) calendar days of the date this decision becomes final, the agency is directed to rescind appellant's June 1993 performance appraisal with its summary rating of "fully successful" performance appraisal at issue, and replace it with an appraisal supporting a summary rating of "exceptional." Within the same time period, the agency shall provide appellant with any award, bonus or retroactive step increase which appellant would have been entitled to if he had received the "exceptional" rating originally. (B) The agency shall restore to appellant all sick and annual leave he was forced to use between May 1994 and June 1995 as a result of the agency's retaliatory actions. In addition, the agency shall provide appellant with reimbursement for any medical expenses he may have incurred during this period because of lapses in his medical insurance coverage due to being placed on leave without pay.<7> (C) Training shall be provided to the managers responsible for the agency's actions in this matter focusing on their obligations and duties imposed by Title VII. (D) The agency shall post at the New York District of the U.S. Army Corps of Engineers 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. (E) Within sixty (60) calendar days of the date this decision becomes final, the agency shall award appellant the sum of $35,000 in non-pecuniary damages for the emotional distress he suffered as a result of the agency's discriminatory actions. (F) 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 appellant, including evidence that the corrective action has been implemented. 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 the appellant. If the agency does not comply with the Commission's order, the appellant may petition the Commission for enforcement of the order. 29 C.F.R. §1614.503 (a). The 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, the 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(c) (Supp. V 1993). If the 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 the 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. § l6l4.604(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 an 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 EIGHTY (180) CALENDARS 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: August 5, 1999 _________________ _______________________________ DATE Frances M. Hart Executive Officer Executive Secretariat 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 Title VII of the Civil Rights Act 0f 1964, as amended, 42 U.S.C. §2000e et seq., has occurred at this 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, or PHYSICAL or MENTAL DISABILITY with respect to hiring, firing, promotion, compensation, or other terms, conditions or privileges of employment. The U.S. Army Corps of Engineers, New York District, will comply with such Federal law and will not take action against individuals because they have exercised their rights under law. The U.S. Army Corps of Engineers, New York District, has been found to have unlawfully retaliated against the individual affected by the Commission's finding because of his prior EEO activity. The Commission has ordered that this individual be given a new performance appraisal with any appropriate award, have leave restored, receive payment for certain medical expenses, and be awarded monetary damages to compensate him for the emotional harm caused by the agency's actions. The U.S. Army Corps of Engineers, New York District, will ensure that officials responsible for personnel decisions and terms and conditions of employment will abide by the requirements of all Federal equal employment opportunity laws and will not retaliate against employees who file EEO complaints. The U.S. Army Corps of Engineers, New York District, 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. ____________________ Date Posted: _____________________ Posting Expires: _________________ 29 C.F.R. Part 16141 See footnote 4 of this decision. 2 We note that the facts are presented in great detail in the agency's final decision, the investigative report and the AJ's recommended decision, and will only be repeated herein to the extent necessary to resolve this appeal. 3 The record indicates that appellant had also filed at least three other EEO complaints between 1987 and 1991. 4 In a hearing exhibit submitted by appellant, he indicated that 292 hours were taken as leave without pay (LWOP), 608 hours were taken as sick leave, and 120 hours taken as annual leave. However, towards the end of the hearing, appellant's attorney stipulated that the 292 hours of LWOP was later converted by the agency to sick leave and paid. Hearing Transcript at 532. Appellant testified, however, that while on LWOP his medical insurance was temporarily terminated and he incurred uninsured medical expenses during this period. 5 The Commission also notes that, with the exception of allegation no. 3, regarding appellant's "fully successful" performance appraisal, all the other allegations which resulted in findings of retaliation by the AJ occurred after May 1994. 6 Moreover, appellant testified that he was ready to go back to work in July 1994 as his recurrence of PTSD had been resolved. 7 The Commission notes that the agency has already converted all of appellant's leave without pay to sick leave for which he has been paid.