Michael M. Amaro v. United States Postal Service 01A20929 05-29-03 . Michael M. Amaro, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency. Appeal No. 01A20929 Agency Nos. 4-G-780-0055-99, 4-G-780-0321-99 Hearing No. 360-99-8931X DECISION Pursuant to 29 C.F.R. § 1614.405, the Commission accepts the complainant's appeal from the agency's final order in the above-entitled matter. Complainant alleged that the agency had discriminated against him on the bases of age (5/8/47) and reprisal for prior EEO activity in that he was subjected to a hostile work environment, when (1) on September 16, 1998, he was issued a Notice of Proposed Reduction in Grade to a Part Time City Carrier; and on (2) April 6, 1999, he was issued a Letter of Warning for unsatisfactory performance-noncompliance with START agreements. After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to affirm the final agency order because the Administrative Judge's (AJ) ultimate finding, that unlawful employment discrimination was proven by a preponderance of the evidence, is supported by the record. While the agency maintained in its response to complainant's appeal that a finding of no discrimination is appropriate in this matter, this position conflicts with its final order agreeing to fully implement the AJ's decision. If the agency disagreed with the AJ's conclusions, it could have issued an order denying implementation of the AJ decision and simultaneously filed an appeal with the Commission. 29 C.F.R. §1614.110(a). Furthermore, the agency's contention that reprisal must affect a term, condition or privilege of employment is misplaced. See EEOC Compliance Manual, No. 915.003, Section 8, Retaliation (May 20, 1998). The Commission also affirms the AJ's determination that attorney's fees and compensatory damages, in accordance with the Age Discrimination in Employment Act, are not available in this case. On appeal, complainant strongly argues that he is entitled to liquidated damages. However, while liquidated damages are available to litigants in the private sector for willful violations of the Age Discrimination in Employment Act, such damages are not available to federal sector employees in the administrative process, nor are compensatory damages or attorneys fees. See Falks v. Department of the Treasury, EEOC Request No. 05960250 (September 5, 1996); Jacobsohn v. Department of Health and Human Services, EEOC Request No. 05930689 (June 2, 1994).<1> 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 ___05-29-03_______________ Date 1However, if it has not done so, the agency is advised to immediately implement all other remedies outlined in the AJ's order.