Steven W. VanDesande v. United States Postal Service
07A40037
September 28, 2004
.


Steven W. VanDesande,
Complainant,

v.

John E. Potter,
Postmaster General,
United States Postal Service,
Agency.

Appeal No. 07A40037

Agency Nos. 4-H-330-1138-96, et seq.<1>

Hearing Nos. 150-A0-8411X, et seq.<2>

DECISION

Concurrent with its October 17, 2003 final order, the agency timely
filed the captioned appeal.<3>  The Commission accepts the appeal.
29 C.F.R. § 1614.405.

On appeal, both parties submit substantial appeal statements.  In brief,
the agency requests that the Commission affirm its rejection of an EEOC
Administrative Judge's (AJ) Default Judgment against it;  alternatively,
the agency requests that the Commission vacate or reduce the Order of
remedies and damages.  Complainant requests that the Commission uphold the
Default Judgment, and order the agency to pay certain additional damages,
and increase the amounts of the damages already awarded by the AJ.

Complainant, a Letter Carrier employed at the agency's Promenade Station,
Hialeah, Florida facility, filed the above referenced  formal EEO
complaints.  The AJ consolidated the complaints and framed complainant's
claim as follows:

Whether the agency retaliated against complainant when he was subjected
to continued harassment beginning on or about November 15, 1995, through
his date of termination, effective on October 11, 1996.<4>

On December 10, 2001, the AJ issued a Default Judgment against the agency.
The AJ found that complainant filed the first complaint in November 1995,
and that in 1998, the cases were remanded to the agency for processing.
However, the AJ found that the complaints were returned to the Commission
in 2001, with very little investigation completed.  The AJ also found
that the agency failed to provide adequate justification for its lack
of investigation, and compounded the lack of evidentiary development
when it repeatedly failed to comply with complainant's requests for
discovery, despite its verbal assurances that it would do so.  The AJ
issued the Default Judgment against the agency finding that it failed
to comply with the Commission regulations to investigate complaints,
failed to respond to complainant's requests and motions for discovery,
failed to respond to the AJ's Orders to investigate the complaints and
respond to complainant's requests for discovery, and failed to make
good on its own representations that it would comply in these matters.
The AJ determined that the agency was in sole possession of information
critical to the preparation of complainant's case, and that the case
could not move forward without this extraordinary sanction.

On September 4, 2003, after conducting an extensive hearing on the issue
of damages, which included expert testimony on the calculation of damages
under the circumstances of this case,  the AJ issued a decision finding
that complainant was entitled to the following make whole relief:

The AJ awarded complainant $116,733.00 in front pay.  In finding that
the record supported an award of front pay, the AJ found that after
complainant's return to work in May 2001, there was no “ebb” in the
agency's antagonism toward complainant.  The AJ also noted complainant's
testimony that he would have retired from the agency if not harassed,
but that to escape this environment, he instead obtained employment with
Dade County as a Fire-fighter/EMS.  The AJ also noted the testimony
of complainant, and certain  co-workers, regarding statements made by
management officials (and an agency attorney), after complainant's May
2001 reinstatement, suggesting that actions were being taken to ensure
that complainant would quit or be terminated. Additionally, the AJ noted
the testimony of complainant's doctor indicating that complainant would
still need 4 or 5 post-hearing years of medical treatment and therapy for
depression, anxiety, post-traumatic stress order, and somatic symptoms,
and that return to a position with the agency would cause relapse and
great harm.  The AJ also noted that any award due to complainant regarding
the complaints he filed after his May 2001 reinstatement would be affected
by the award of front pay.<5>  In calculating the amount of front pay,
the AJ found that the model provided by complainant's expert witness was
the same used in Federal Court (probability adjusted method discounted by
present value), which reflects the loss of projected pay from the agency
less the projected pay from complainant's Dade County employment.<6>

The AJ awarded complainant $200,000.00 in non-pecuniary compensatory
damages.   The AJ found that the record demonstrated the required nexus
between the agency's conduct and the harm to complainant.  The AJ also
found that this case was characterized by  unique circumstances which
justified this award.  Specifically, the AJ found that in addition to
the hostile work environment created by the agency, as set forth in
the numerous captioned complaints,<7> complainant was also subjected to
numerous terminations and suspensions, all which were rescinded.  The AJ
found that these actions caused complainant to suffer a severe loss of
self-esteem; made him reclusive; resulted in the loss of his marriage
and relationship with his children; and resulted in withdrawal from his
extended family, consisting of his mother and several brothers.  The AJ
also noted complainant's need for psychiatric care and medical care,
including multiple medications, and found that the nature, severity, and
duration of the adverse treatment justified an award of $200,000.00.<8>

In his award of past pecuniary compensatory damages, the AJ found that
complainant was entitled to $15,000.00 for rent incurred as an expense
for a move required for a new job.  The AJ found  that complainant was
obligated to mitigate damages by finding other employment.  However,
the AJ rejected complainant's claim for an “option to buy” and future
moving expenses.

The AJ also awarded complainant  $65,979.00 for negative tax consequences
due to lump sum back payment under the Arbitration Decision, relying on
the model provided by complainant's expert witness.  The AJ rejected the
agency's claim that this amount must be adjusted by a  back pay sum to
be awarded to complainant's spouse, who recently prevailed in her EEO
complaint against the agency, finding that the agency failed to present
sufficient  evidence to make this adjustment.<9>

The AJ awarded complainant past medical expenses and milage of $9,711.75,
cutting the total requested by complainant by one half.  The AJ noted
that the evidence showed that half of his care was the result of stress
related to a criminal investigation, preparing for his EEO cases, and
fear of arrest, which could not be properly included in an award of
compensatory damages in this case.

Finally, in awarding past pecuniary compensatory damages, the AJ
awarded complaint processing costs (associated with preparation of his
EEO complaints) and mileage of $3,090.64; and $883.57, for the amount
of out-of-pocket medical expenses paid for family members because of a
loss of health insurance when terminated.

As future pecuniary compensatory damages, the AJ found that complainant's
doctor attested to complainant's need for 4 or 5 years of continued
post-hearing treatment, consisting of 60 office visits, charged at
a rate of $195.00 per hour, and 48 other visits charged at a rate of
$110.00 per hour, for a total of $7,620.00.  However, as noted above,
the AJ determinated that this amount must be reduced by one half, for a
total of $3,810.00.  The AJ also found that the evidence demonstrated
that complainant would expend $566.75 per month in medications, for a
total of $34,005.00 in a five-year period, which reduced by one half,
resulted in an award of $17,002.50.

The AJ also noted that the parties had agreed to stipulated damages for
certain of the captioned complaints, as follows:

  *4-H-330-1319-96:  $2,563.20 (suspensions in 11/94 and 4/95)

  *4-H-330-1139-96: $192.24  (overtime in 11/95)
  *4-H-330-1402-96: $854.40 (straight time from 2/96 to 3/96)

  *4-H-330-1469-95: $854.40 (straight time from 3/96 to 4/96)

  *4-H-330-1354-96 and
    4-H-330-1417-96: $6,151.68 (overtime from 1/96 to 3/96)

  *4-H-330-1264-96: $170.88 (straight time in 12/96)

  *4-H-330-1726-96: $3,597.38 (TSP contributions & tax consequences;
  39 hours of straight time for 1996 suspension)

  *4-H-330-1307-96: Pay differential plus step for pay periods 1996-02-01
  through 1996-08-02, no amount provided or calculable at this time.

*Agency also agreed to pay $450.00 to complainant for Dr. Pravders'
May 2002 deposition testimony; and $300.00 for Dr. David's May 2002
deposition testimony.

In awarding attorney's fees and costs, the AJ determined that complainant
was entitled to an award of $18,186.30 in costs for his expert witnesses,
but excluded clerical fees from this amount.

Regarding attorney's fees, the AJ noted that complainant was consecutively
represented by two different attorneys.  The AJ found that the record
lacked sufficient evidence to specifically assess the attorney's fees
for Attorney 1.  However, the AJ  found that he worked 44.7 hours on
the case, and that a reasonable hourly rate should be $150.00.  The AJ
found that the number of hours must be reduced by 10% for travel time,
to 40.2 hours, for a total of $6,030.00.   Regarding  Attorney 2, the
AJ found that although he requested $300.00 per hour, his level of legal
expertise and experience did not justify this amount, and instead found
that $225.00 per hour was justified.  The AJ also found that the number
of hours claimed by Attorney 2, (441.5 hours), included redundant and
unnecessary work (multiple reviews and re-drafting and researching common
areas of law), and that the petition did not include any discount for
travel time.<10>  Therefore, the AJ reduced the number of hours by 10%,
and awarded attorney's fees for Attorney 2 in the amount of $89,403.75.

In his final order of remedies, the AJ also ordered the agency to
expunge all of complainant's records,  provide training to all implicated
personnel, and post a notice regarding this finding of discrimination.
The AJ also noted that complainant's award of compensatory damages must
be reduced to $300,000.00 because of the statutory cap.  The AJ found
that this cap applies to each award of damages, as set forth in items
1-6 above.<11>

The agency's final order rejected the AJ's decision, and the instant
appeal, by both parties, followed.

Default Judgment

The Commission's regulations afford broad authority for the conduct of
hearings by Administrative Judges.  See 29 C.F.R. § 1614.109, et seq.
When a party fails to comply with an AJ's order, an AJ may take action
against the non-complying party, pursuant to 29 C.F.R. § 1614.109(f)(3),
up to and including issuing a decision in favor of the opposing party.
See 29 C.F.R. § 1614.109(f)(3)(iv).

As an initial matter, we find that the agency's argument on appeal,
that the AJ's Default Judgment Order was procedurally defective because
the AJ did not first issue a Show Cause Order, to be without merit.
Specifically, we find that rescinding the initial October 11, 2001
Default Judgment, and giving the agency the opportunity to demonstrate
why sanctions should not be levied,  had the same effect as the issuance
of a Show Cause Order prior to the issuance of the December 10, 2001
Default Judgment.

Furthermore,  we find that the record supports the sanction of a Default
Judgment in this case, given evidence of the agency's overwhelming
failure to investigate the captioned complaints or provide complainant
with information crucial to demonstrating his claims.  Specifically, we
concur with the AJ's findings  regarding the agency's failure to justify
its lack of compliance with the Commission's regulations, the AJ's Orders,
and its own representations that it would engage in meaningful discovery,
and find no abuse of discretion in ordering a Default Judgment against
the agency.  See Bak v. U.S. Postal Service, EEOC Appeal No. 07A20039
( May 15, 2003), request for reconsideration denied, EEOC Request
No. 05A30921 (September 30, 2003).   As held by the AJ, we concur that
this case could not proceed because of the agency's conduct, such that
the imposition of a Default Judgment was warranted.

Accordingly, we REVERSE the agency's final order finding that the AJ
improperly issued a Default Judgment against it.

Remedies and Damages

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).

Pursuant to Section 102(a) of the Civil Rights Act of 1991, a
complainant who establishes unlawful discrimination may receive, in
addition to equitable remedies,  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).  See 42 U.S.C. § 1981a(b)(3).
For an employer with more than 500 employees, such as the agency, the
limit of liability for future and non-pecuniary compensatory damages
is $300,000.00.  The Supreme Court has confirmed that the Commission
possesses the legal authority to require federal agencies to pay
compensatory damages.  See West v. Gibson, 527 U.S. 212 (1999).

Front Pay

As a general rule, reinstatement into an appropriate position is
preferred to an award of front pay.  See Romeo v. Department of the
Air Force, EEOC Appeal No. 01921636 (July 13, 1992).  However, the
Commission has identified three circumstances where front pay may be
awarded in lieu of reinstatement: (1) where no position is available;
(2) where a subsequent working relationship between the parties would
be antagonistic; or (3) where the employer has a record of long-term
resistance to anti-discrimination efforts.  See Keys v. Department of
Defense, EEOC Request No. 05870464 (May 6, 1988); York v. Department
of the Navy, EEOC Appeal No. 01930435 (February 25, 1994); McNabb
v. U.S. Postal Service, EEOC Appeal No. 01A33116 (April 19, 2004).
The fact that front pay is awarded in lieu of reinstatement implies that
the complainant is able to work but cannot do so because of circumstances
external to the complainant.

Regarding the front pay award, we find that the AJ applied the proper
legal analysis in determining that complainant was entitled to front pay
in this case.  The AJ correctly determined that complainant satisfied
prong 2 above, based on evidence of the agency's intent to effect his
termination by various means, and the continued unabated hostilities
between complainant and a wide array of management officials. We also
find that the AJ properly relied on the economic model provided by
complainant's expert witness to calculate the amount of this award,
and properly limited this award to the 5-year period following the
hearing, in which complainant would require medical treatment, as
opposed to complainant's projected retirement date, because this is
when complainant would most likely first be able to return to work at
the agency.  Additionally, as previously noted, we also find that the
AJ properly considered post-May 2001 incidents in determining whether
front pay was warranted, as distinct from the issue of liability in
the other complaints.  The AJ also properly noted that damage awards in
complainant's subsequently filed EEO complaints would have to be adjusted
in accordance with the front pay award in this case.  Additionally, we
find that the award of front pay is appropriate because complainant's
employment as a Firefighter does not render him “unavailable for work,”
as would his physical inability to work due to disability.   See McNabb,
supra.  Also, although the agency has many facilities nationwide,
we  accord much deference to the AJ's assessment of the testimony of
complainant's psychiatrist that his reinstatement at the agency would
have a severe detrimental effect.

Notwithstanding the above determination however,  as argued by complainant
on appeal, in the event that the AJ treated the front pay award as
compensatory damages, subject to the $300,000.00 statutory cap, we find
that this constitutes error.<12>  The Commission has addressed issues
related to compensatory damages and other relief in its Enforcement
Guidance: Compensatory and Punitive Damages Available under Section
102 of the Civil Rights Act of 1991, No. N 915-002 (July 14, 1992)
(herein referred to as “Guidance”)    Monetary relief, such as back pay
and interest on back pay is equitable relief and consists of monetary
damages for loss of earnings, including all fringe benefits.  Such relief
is not compensatory damages, and complaining parties may recover equitable
relief without limitation.  See Guidance at 2.  Front pay is a type of
“relief authorized under Title VII” and, therefore, is also excluded from
the definition of compensatory damages and is not included in the caps.
See Guidance at 6.

Accordingly, we find that complainant is entitled to an award of
$116,733.00 as front pay, which may not be reduced or eliminated by the
statutory cap on compensatory damages.


Compensatory Damages

To receive an award of compensatory damages, a complainant must
demonstrate that he or she has been harmed as a result of the agency's
discriminatory action; the extent, nature, and severity of the
harm; and the duration or expected duration of the harm.  See Rivera
v. Department of the Navy, EEOC Appeal No. 01934157 (July 22, 1994),
req. for recons. den., EEOC Request No. 05940927 (December 11, 1995);
Guidance at 11-12, 14.

Compensatory damages may be awarded for the past pecuniary losses,
future pecuniary losses, and non-pecuniary losses which are directly or
proximately caused by the agency's discriminatory conduct.  See Guidance
at 8.  Objective evidence of compensatory damages can include statements
from the complainant concerning his or 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, health care providers, other
counselors (including clergy) 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.
See Lawrence v. United States Postal Service, EEOC Appeal No. 01952288
(April 18, 1996), citing Carle v. Department of the Navy, EEOC Appeal
No. 01922369 (January 5, 1993).

Non-Pecuniary Compensatory Damages

There are no rules governing amounts to be awarded for non-pecuniary
compensatory damages; however,  the Commission has set forth certain
principles.  See Sinnott v. Department of Defense, EEOC Appeal
No. 01952872 (September 19, 1996).  An award must be predicated on the
harm experienced as a result of the agency's actions; the extent, nature,
and severity of the harm suffered; and the duration or expected duration
of the harm.  An award must take into account the severity of the harm
over the length of time that the injured party suffered from the harm.
An award should not be “monstrously excessive” standing alone, the product
of passion or prejudice, or inconsistent with awards in similar cases.
See Cygnar v. City of Chicago, 865 F.2d 827, 848 (7th cir. 1989);
Guidance at 13-14.  In cases where the Commission has made substantial
awards for non-pecuniary damages, the evidence of record tended to show
that the emotional or psychological injuries that resulted from the
agency's actions had permanent or substantially long-term effects.

In the instant case, we find that the AJ properly concluded that
complainant demonstrated the required nexus  between the agency's
discriminatory conduct and his injury; and that the AJ properly excluded
the harm associated with his distress at the loss of his military career,
being the subject of a criminal investigation, and the preparation/pursuit
of his EEO complaints.<13>  Additionally, we find that the AJ conducted
a hearing on the issue of non-pecuniary compensatory damages, personally
assessing testimony given by complainant, his wife and brother, as well
as his treating medical providers, and properly considered his diagnosis
and treatment for major depression, an anxiety disorder, and symptoms
of post-traumatic stress disorder and somatic symptoms.  Based on this
testimony, and pertinent documentary evidence, the AJ  determined that the
nature, severity, and duration of complainant's harm warranted an award
of $200,000.00.  We find that the AJ also analyzed somewhat comparable
cases, although finding that a higher award was warranted in this case
based on the unique circumstances of complainant's “torrid” employment at
the agency, especially the multiple, unwarranted, retaliatory suspensions
and terminations he suffered.

Although we find that the AJ applied the correct legal analysis, and
properly assessed and weighted the hearing testimony,  we must agree with
the agency, that the AJ apparently did not consider that even despite
his mental condition, complainant was able to successfully train as
a firefighter/EMS, and completed his probation for this position in
December 2002.  There is no dispute in the record that this is an
extremely stressful job, and there is no evidence to suggest that
complainant's psychiatric condition  interfered with his training or
subsequent job performance.  When the Commission awards non-pecuniary
damages in this range, there is generally evidence of long-term or
permanent harm, and that this harm is substantial, often resulting in
a significant or total impairment of  complainant's ability to work.
See Cook v. U.S. Postal Service, EEOC Appeal No. 01950027 (July 17, 1998).
Therefore, taking into consideration complainant's ability to train and
perform as a firefighter-EMS for Miami-Dade County as a measure of his
mental and physical well-being, which the AJ apparently did not consider,
we find that the award for non-pecuniary damages must be reduced to
$150,000.00.   We MODIFY the AJ's award of remedies accordingly.

Past Pecuniary Compensatory Damages

Past pecuniary losses are out-of-pocket losses incurred prior to the date
of the resolution or conclusion of litigation of the damage claim,<14>
and the amount is determined by receipts, records, bills, cancelled
checks, confirmation by other individuals, or other proof of actual
losses and expenses.

In his award of past pecuniary compensatory damages, as described above,
the AJ included an award for rent as an expense incurred in securing
other employment, negative tax consequences associated with the back pay
lump sum under the Arbitration Decision, medical expenses, and processing
costs of these EEO complaints.  We have carefully considered the parties'
arguments on appeal regarding these awards.  We find that they are
supported by substantial evidence, and that the AJ correctly applied
the appropriate regulations, policies, and laws.<15>  We note that past
pecuniary losses are  not included in the $300,000.00 statutory cap and
are fully compensable where actual out-of-pocket losses can be shown.
Section 1981a(b)(3) limits only claims that typically do not lend
themselves to precise quantification, i.e., punitive damages, future
pecuniary losses, and non-pecuniary losses.  See Guidance at 7.

Future Pecuniary Compensatory Damages

Future pecuniary losses are out-of-pocket expenses that are likely to
occur after settlement or conclusion of litigation.  It includes, for
example, job search expenses, medical expenses, psychiatric expenses,
physical therapy expenses, and other quantifiable out-of-pocket expenses
that are incurred as a result of the discriminatory conduct.  This award
is subject to the statutory cap.Upon review, and in considering the
arguments raised on appeal, we find that the AJ applied the appropriate
legal analysis is assessing complainant's need for continued medical and
psychiatric care, and properly calculated these expenses, as described
above.  We find that the award is supported by substantial evidence,
and we find no reason to disturb this determination.

Stipulated Damages

Given that the parties have stipulated to these damages, as described
above, we find no need to address this award on appeal.  However,
we note that these damages are “equitable,” in that they reimburse
complainant for lost wages and costs associated with case processing.
As such, the AJ erred in characterizing them as compensatory damages,
and they are not subject to the statutory cap.


Attorney's Fees and Costs<16>

The fee award is ordinarily determined by multiplying a reasonable
number of hours expended on the case by a reasonable hourly rate, also
known as a "lodestar."  See 29 C.F.R. § 1614.501(e)(2)(ii)(B); Bernard
v. Department of Veterans Affairs, EEOC Appeal No. 01966861 (July 17,
1998).  In determining the number of hours expended the Commission
recognizes that the attorney "is not required to record in great
detail the manner in which each minute of his time was expended."  Id.
However, the attorney does have the burden of identifying the subject
matters on which he spent his time by submitting sufficiently detailed
and contemporaneous time records to ensure that the time spent was
accurately recorded.  Id.
Further, a reasonable fee award may be assessed in light of factors such
as: (1) the time required (versus time expended) to complete the legal
work; (2) novelty or difficulty of the issues; (3) the requisite skill
to properly handle the case; (4) the degree to which counsel is precluded
from taking other cases; (5) the relief sought and results obtained; and
(6) the nature and length of the attorney-client relationship.  See Cerny
v. Department of the Army, EEOC Request No. 05930899 (October 19, 1994).
Complainant is only entitled to an award for time reasonably expended.
It does not always follow that the amount of time actually expended is
the amount of time reasonably expended.  Elvin v. Department of Labor,
EEOC Request No. 01943425 (August 31, 1995).  Rather, "billing judgment"
is an important component in fee setting, and hours that would not be
properly billed to a private client are also not properly billed to
the agency pursuant to a successful EEO claim.  Id.  Counsel for the
prevailing party should make a "good faith effort to exclude from a fee
request hours that are excessive, redundant or otherwise unnecessary."
See Bernard, EEOC Appeal No. 01966861.

In this case, after careful consideration of the arguments raised by
the parties on appeal, we find that the AJ properly assessed the legal
fees and costs associated with the representation of both Attorney
1 and Attorney 2.  We find that the AJ applied the appropriate legal
analysis, as set forth above, made appropriate reductions, and that his
determination is supported by substantial evidence.

Additional Appeal Arguments

On appeal, complainant argues that the award of remedies should be
subject to pre-judgment interest.  However, the Commission has held
that interest on damages does not accrue until the agency incurs
the underlying liability, i.e., when this decision becomes final.
See Hogeland v. Department of Agriculture, EEOC Appeal No. 01976440
(June 14, 1999).   Complainant also argues that he is entitled to back
pay and the monetary equivalent of restoration of leave, from the date he
left employment at the agency, on July 9, 2001.  However, we find that
the AJ correctly limited the instant adjudication to those incidents
raised in the captioned complaints, occurring between November 15, 1995
and October 11, 1996, such that the agency's liability for back pay or
restoration of leave is a matter properly addressed in the complaints
filed by complainant after his May 2001 reinstatement.  If these remedies
are  awarded, they must be off-set by the award of front pay in this case.
Complainant also requests a full measure of damages associated with the
loss of his military career.  However, we find that this matter does
not fall within the purview of the Commission's jurisdiction.

Conclusion

Therefore, after a careful review of the record, including arguments and
evidence not specifically discussed in this decision, the Commission
REVERSES the agency's final order, and MODIFIES the AJ's award of
remedies, as set forth above.  We REMAND the matter to the agency to take
corrective action in accordance with this decision and the Order below.

ORDER

The agency is ORDERED to take the following remedial action:

 Within 30 calendar days of the date that this decision becomes final,
 the agency will pay complainant equitable damages as follows:
 $116,733.00 as an award of front pay, and
 $65,979.00 as an award for negative tax consequences.

 Within 30 calendar days of the date that this decision becomes final,
 the agency will pay complainant $150,000.00 in non-pecuniary compensatory
 damages.

 Within 30 calendar days of the date that this decision becomes final,
 the agency will pay complainant for past pecuniary compensatory damages
 as follows:
$15,000.00 for rent incurred as an expense for moving to a new job;
$9,711.75 for medical expenses and mileage;
$3,090.64 for complaint processing costs and mileage; and
$883.57 for out-of-pocket medical expenses incurred upon loss of medical
insurance.

 Within 30 calendar days of the date that this decision becomes final,
 the agency will pay complainant future pecuniary compensatory damages
 for medical care as follows:<17>
$7,620.00 for office visits; and
$17,002.50 for medications.

 Within 30 calendar days of the date that this decision becomes final, the
 agency will pay complainant the following amounts as stipulated damages:

  4-H-330-1319-96:  $2,563.20 (suspensions in 11/94 and 4/95)

  4-H-330-1139-96: $192.24  (overtime in 11/95)

  4-H-330-1402-96: $854.40 (straight time from 2/96 to 3/96)

  4-H-330-1469-95: $854.40 (straight time from 3/96 to 4/96)

  4-H-330-1354-96&
    4-H-330-1417-96: $6,151.68 (overtime from 1/96 to 3/96)

  4-H-330-1264-96: $170.88 (straight time in 12/96)

  4-H-330-1726-96: $3,597.38 (TSP contributions & tax consequences;
  39 hours of straight time for 1996 suspension)

  4-H-330-1307-96: Pay differential plus step for pay periods 1996-02-01
  through 1996-08-02, no amount provided or calculable at this time.


Dr. Pravders' May 2002 deposition testimony:  $450.00, and

  Dr. David's May 2002 deposition testimony:  $300.00.

 Within 30 calendar days of the date that this decision becomes final,
 the agency will pay complainant the following amounts in expert witness
 fees, and attorney's fees and costs:
Expert witnesses:   $18,186.30
Attorney 1:    $6,030.00, and
Attorney 2:     $89,403.75.

Within 30 calendar days of the date that this decision becomes final, the
agency will expunge any and all derogatory annotations in complainant's
official personnel folder and/or all other agency records regarding
issuance of discipline which was found to be based on discrimination.
Complainant's record should not contain any reference to any of the
matters which have been the subject of the instant adjudication.

Within 60 calendar days of the date that this decision becomes final,
the agency will conduct training for the responsible management officials
named by complainant in the captioned complaints who are still employed by
the agency.  The training should detail  responsibilities for eliminating
discrimination and retaliation for opposing discriminatory practices
and participating in protected EEO activity.

The agency shall consider taking appropriate disciplinary action
against the responsible management official.  The Commission does not
consider training to be disciplinary action.  The agency shall report
its decision to the compliance officer.  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.  If any of the responsible
management officials have left the agency's employ, the agency shall
furnish documentation of their departure date(s).

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 Promenade Station, Hialeah,
Florida 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/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 (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.
See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 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 and 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.  See 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 (R0900)

This is a decision requiring the agency to continue its administrative
processing of your complaint.  However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court  within ninety (90) calendar days from the date
that you receive this decision.    In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission.  If you file a civil action, you must name as the defendant in
the complaint the person who is the official agency head  or   department
head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work.  Filing a civil
action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (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

September 28, 2004
__________________
Date

14-H-330-1319-96; 4-H-330-1402-96;
4-H-330-1139-96; 4-H-330-1180-96; 4-H-330-1230-96; 4-H-330-1452-96;
4-H-330-1724-96; 4-H-330-1393-96; 4-H-330-1726-96; 4-H-330-0173-96;
4-H-330-1590-96; 4-H-330-1453-96; 4-H-330-1455-96; 4-H-330-1392-96;
4-H-330-1371-96; 4-H-330-1416-96; 4-H-330-1395-96; 4-H-330-1354-96;
4-H-330-1588-96; 4-H-330-1372-96; 4-H-330-1394-96; 4-H-330-1396-96;
4-H-330-1469-96; 4-H-330-1403-96; 4-H-330-1275-96; 4-H-330-1307-96;
4-H-330-1264-96; 4-H-330-1417-96;4-H-330-1320-96; 4-H-330-1274-96;
4-H-330-0070-97.

2150-97-8574X; 150-97-8582X; 150-97-8484X; 150-A0-8762X; 150-A0-8763X;
150-A0-8764X; 150-A0-8765X; 150-A0-8766X; 150-A0-8767X; 150-A0-8791X;
150-A0-8792X; 150-A0-8793X; 150-A0-8768X; 150-A0-8769X; 150-A0-8770X;
150-A0-8771X; 150-A0-8772X; 150-A0-8773X; 150-A0-8776X; 150-A0-8777X;
150-A0-8778X; 150-A0-8779X; 150-A0-8780X; 150-A0-8781X; 150-A0-8782X;
150-A0-8783X; 150-A0-8784X; 150-A0-8785X; 150-A0-8786X; 150-A0-8787X;
150-A0-8788X; 150-A0-8790X.

3On February 18, 2004, the Commission issued notice to the parties that
it administratively closed the docket on the appeal filed by complainant
(EEOC Appeal No. 01A40977), as a duplicate docket.  We will now consider
the matters raised by complainant on appeal herein.

4Although a May 10, 2001 Arbitration Decision rescinded complainant's
termination, and returned him to work , the record reflects that
complainant continued to file EEO complaints after his reinstatement.
In terms of agency liability, the AJ limited the instant adjudication
to those incidents occurring prior to October 11, 1996.

5On appeal, the agency argues that the AJ erred in considering incidents
which occurred  after complainant's May 2001 reinstatement, because
they are the subject of subsequently filed EEO complaints.  However, we
find that the AJ properly considered these incidents in the context of
a front pay remedy in the instant case, which are distinguished from an
adjudication of liability as to the subsequently filed EEO complaints.
Furthermore, we find that the AJ properly determined that any award of
remedy in the subsequently filed EEO complaints would be affected by
the award of front pay in this case.

6The AJ found that the record lacked sufficient evidence to show that
complainant was  entitled to an award for lost earning capacity.

7Generally, the complaints describe lost pay, denial of leave, lost
overtime, improper placement on “AWOL” status, and other numerous and
continuous acts of harassment.

8The AJ excluded complainant's stress related to a criminal investigation,
including the fear of arrest, the loss of his military career, and
preparation of his EEO cases.  The AJ found that  that these matters
could not properly be included in an award of  compensatory damages.

9The AJ declined to award complainant back pay in this case, regarding
the October 11, 1996 termination, finding that because complainant
received this award under the Arbitration Decision, it would result in
a double recovery.

10Attorney 2 has his office in Georgia, while complainant resides
in Florida.

11The AJ found that the total award under “Section V” of his decision,
which includes awards for front pay, non-pecuniary compensatory damages,
pecuniary compensatory damages (past and future), moving expenses,
award for negative tax consequences associated with back pay award
in Arbitration Decision, and stipulated damages, totals $312,386.23.
However, we find that these amounts, which are reflected above, (i.e.,
$116,733.00 + $200,000.00 + $15,000.00 + $65,979.00 + $9,711.75 +
$3,090.64 + $883.57 + $3,810.00 + $17,477.50) instead total  $ 452,210.46.

12As indicated in the previous footnote (#11), it is not clear which
damage amounts the AJ included in his cumulative compensatory damage
total.

13On appeal, the agency argues that the AJ considered these incidents in
his award of non-pecuniary compensatory damages, and that the amount must
be reduced.  However, although the AJ's language is somewhat ambiguous,
we find that he clearly recognized that the harm caused by the criminal
investigation, loss of military career, and pursuit of his EEO complaints
must be excluded, as evidenced by his ½ reduction in the amounts requested
as pecuniary compensatory damages for medical and other expenses.
We also find that these exclusions are proper, and advise complainant
to seek recourse in the forums in which these matters arose.

14The agency argues that this date is October 11, 2001, the date of the
initial Default Judgment Order.  However, we disagree, given that this
Order was rescinded, and another Default Judgment Order was issued on
December 10, 2001.  We also find that the “litigation” in this case was
not concluded until September 4, 2003, the date of the AJ's decision
on remedies.  We find that the latter is the “bright line date” between
past and future pecuniary damages.

15As a point of clarification, we find that the Commission has held
that an award for negative tax consequences is also available as
an equitable remedy, as well as an award of compensatory damages.
See Goetz. V. Department of the Navy, EEOC Appeal No. 01991530 (August
22, 2001).  Therefore, we find that this award is not subject to the
statutory cap.


16The parties do not appear to dispute the amounts awarded for expenses
associated with complainant's expert witnesses.  Therefore, we do not
address this matter on appeal.

17When added to the $150,000.00 in non-pecuniary compensatory damages,
we find that this amount does not exceed the $300,000.00 statutory cap.