ALICIA SINNOTT, APPELLANT,
v.
WILLIAM J. PERRY, SECRETARY, DEPARTMENT OF DEFENSE, (ARMY & AIR FORCE EXCHANGE SERVICE), AGENCY.

Appeal No. 01952872
Hearing No. 100-94-7418X
Agency No. E-02-0692.06

INTRODUCTION

Appellant filed an appeal with this Commission from a final decision of the agency concerning her complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e etseq. The final agency decision was received on February 14, 1995. The appeal was filed on March 9, 1995. Accordingly, the appeal is timely (see 29 C.F.R. §1614.402(a)) and is accepted pursuant to EEOC Order No. 960, as amended.

ISSUE PRESENTED

The issue presented is whether the final agency decision reasonably determined the amount of compensatory damages to be awarded to appellant, who was sexually harassed and ultimately constructively discharged by the agency.

CONTENTIONS ON APPEAL

Appellant contends that the agency's award of $20,000 in compensatory damages is inadequate and that the agency acted improperly when it had certain medical documents reviewed by an agency nurse. The agency contends that the award is adequate and was reasonably determined, and that review by the nurse was proper.

BACKGROUND

In June 1991, appellant joined the agency as an Exchange Detective, HPP-5, in Giessen, Germany. Appellant resigned from this position on April 13, 1992. In May 1992, appellant sought EEO counseling and, on June 2, 1992, filed a formal EEO complaint alleging that the agency discriminated against her based on her sex by sexually harassing and constructively discharging her. Appellant's complaint was accepted and investigated by the agency, and ultimately heard before an EEOC Administrative Judge ("AJ").

In her recommended decision ("RD"), the AJ found that appellant had been sexually harassed by her supervisor, the Head of Safety and Security. The acts of harassment included the following: asking appellant what she thought about women having affairs; referring to the female exchange detectives as "small," "medium" and "large" based on their breast sizes; referring to them, and introducing them to others, as "Dicky's Devils"1; wearing a belt buckle with the name "Dick" on it and asking her and another female detective whether they wanted to see his "dick," after which he would pull up his shirt and show the buckle; telling dirty jokes; running his hand across her back and inquiring whether she was wearing a bra; brushing his body against hers on numerous occasions; putting his hand on the back of her hip; repeated hugging; trying to hold her hand; and requiring her to vacuum a car while she was wearing a skirt and allowing a male friend to make comments about her legs.

The AJ found that appellant and another female detective had complained to the General Manager of the Giessen exchange about the supervisor's behavior in August 1991. Shortly thereafter, the other female detective resigned. In September 1991, the General Manager witnessed the supervisor touch appellant inappropriately and spoke to the supervisor. The AJ found that agency officials failed to take effective corrective action and that their "extremely feeble" response led appellant to believe that any further complaints would be futile. The AJ further found that the agency did not have effective policies and procedures reasonably calculated to encourage victims of sexual harassment to come forward.

Moreover, the AJ found that the supervisor's abusive treatment of appellant intensified after she and the other detective complained to the General Manager and that "a reasonable person in her situation, faced as she was with ongoing sexual harassment and abusive treatment based on resistance to it, would have felt driven to quit."RD at 26. The AJ found that appellant "made very clear to management that her reason for leaving included sexual harassment by [her supervisor]" through her statements on her exit form and through her verbal statements to the Personnel Manager (who informed the General Manager of the statements). RD at 16. However, the General Manager's response was that he had accepted and processed the resignation and would leave it at that. Accordingly, the AJ found that appellant had been constructively discharged by the agency.

As relief, the AJ recommended that the agency award appellant backpay; extend an offer of reemployment in her position or a substantially equivalent one in an environment free from sexual harassment and retaliation and physically located away from the supervisor; provide her with compensatory damages; post a notice; provide training for managers and supervisors; impose appropriate discipline upon the supervisor; award appellant attorney's fees; and expunge its records of any adverse materials relating to appellant's complaint. While not making a recommendation on the amount of compensatory damages, the AJ noted that the sexual harassment occurred both before and after passage of the Civil Rights Act of 1991 (the "CRA").2 The AJ further found that in November 1991, appellant began to have problems with restlessness and inability to sleep. In March 1992, appellant began to have distressing dreams about her supervisor and to experience high stress due to her discomfort with him being around her. By early April 1992, the high stress caused heart palpitations, for which appellant sought medical assistance and for which her physician placed her on a heart monitor. After her resignation, appellant sought psychological counseling from a social worker to help her deal with bad dreams, internalized anger and a fear that she would run into her supervisor when she left her home. Appellant saw the social worker weekly for three months, until the social worker left Germany. Despite that therapy and the passage of two years, appellant testified at the hearing that she continued to feel anger and frustration about the supervisor's actions. She further testified that she was now "leery" of her male boss. Hearing Transcript ("HT") at 133. At the time of the hearing, appellant was employed as a manager of a rental car facility.

After receipt of the RD, the agency contacted appellant's attorney and requested objective evidence of the amount of pecuniary and non-pecuniary compensatory damages claimed. On January 25, 1995, appellant's attorney provided a letter and hand-written statements from appellant and others. Appellant's attorney stated that appellant sought $480,000 for future pecuniary damages because appellant would be unable to work again for the 24 years remaining before she reached retirement age. The letter also sought $125,000 in nonpecuniary damages for emotional pain and suffering, mental anguish and loss of enjoyment of life. In her statement, appellant said that she lost all faith in herself; that she has nightmares every night and is exhausted from not being able to sleep; that she still has chest pains and her heart races and that, since she knows "what the problem is, [she doesn't] see any point in having an expensive doctor tell [her] what it is;" that her marriage is suffering as a result of the sexual harassment because she can't be open with her husband, there is no intimacy and she is incapable of trusting him or any man; that she wants to work only within a female environment, cannot bear the thought of working with or for men and she "just know[s] that [she] won't be able to work again if there are men around, so it looks like [she] just won't be able to work;" that she can't work because she is so depressed and because she is afraid of being harassed again; and that she is not the carefree person she used to be.

In his statement, appellant's husband asserted that appellant had many bad dreams and nightmares about the sexual harassment and would wake up crying; that he and appellant had little communication between one another since the sexual harassment; that they have not had a sexual relationship since that time and he believes that this is due to the harassment; that appellant is very angry, wants to be left alone and has built a wall around herself; and that, before the sexual harassment occurred, they had the best marriage, she was a very loving person and they used to have a lot of fun going places.

In her statement, appellant's daughter contended that appellant used to be a cheerful person, but has changed and now is distant with her father, has her guard up, and has little trust in male society; that appellant only applies for jobs that involve working for and with women; and that the daughter hopes that her parents' marriage is not destroyed by the sexual harassment.

A person who has been friends with appellant for five years gave a statement which declared that appellant used to be an outgoing person and happy to be around, but is now quiet, withdrawn and unhappy; that she and appellant cannot discuss the sexual harassment because it is too upsetting for appellant; and that the sexual harassment will affect appellant for a long time.

In its final decision, the agency adopted the RD and provided appellant with appropriate relief, including backpay and an offer of reinstatement. The agency found that "the unsworn statements" submitted by appellant and her family failed to establish her inability to work for the next 24 years and noted that, between her resignation and the time of the hearing, appellant had held at least two jobs. The agency also noted that appellant failed to submit any evidence from health care professionals documenting an inability to work or the need for future medical care as a result of the harassment. However, the agency awarded appellant $20,000 in compensatory damages for the emotional harm she suffered. With respect to this award, the agency noted that the Report of Investigation ("ROI") contained documents obtained from appellant's medical records. These documents were generated by three health care professionals: Physician One, who saw appellant when she complained about heart palpitations in the Spring of 1992 and who referred her to Physician Two; Physician Two, whose evaluation noted that he had seen appellant twice before for laxative abuse; and a mental health counselor, who saw appellant on a weekly basis beginning in April 1992 and who noted a "good prognosis for recovery." As previously noted, appellant testified at the hearing that she saw this counselor for three months.

The final agency decision reviewed these documents and the statement submitted on appellant's behalf by her attorney and found "very little objective evidence on which to determine damages and the nexus between the damages and the sexual harassment."Indeed, the agency speculated that the medical records (particularly the reference to laxative abuse) indicated a strong probability that appellant had a preexisting condition of bulimia, which accounted for her heart palpitations and mental health problems. However, based on the statements concerning appellant's continuing anger, marital difficulties and problems sleeping, the agency found that "[she] and her family believe that the sexual harassment has resulted in some changes to her life and marriage," and that an award of $20,000 for emotional distress was appropriate.

Appellant, through her counsel, timely appeals. The appeal stresses that appellant is appealing only "the issue of remedy, because she feels the amount offered her by the agency for compensatory damages ($20,000) is inadequate."As a preliminary matter, the attorney resubmits in notarized format the statements previously provided to the agency. The appeal also asserts that the agency "illegally procured and improperly evaluated [appellant's] medical records," and claims that they "never formed part of the ROI ... nor were they ... ever referenced in the administrative hearing."The appeal claims that the "woefully unqualified assessment of those records by an [agency nurse]," together with the nurse's determination that appellant had a pre-existing condition, exacerbated appellant's emotional state.

The appeal brief reviews the law governing an award of compensatory damages, noting that evidence of emotional harm may be established by testimony of the victim and that medical evidence is not necessary to substantiate an award of damages for mental and emotional impairment. However, the appeal states that appellant currently is in therapy, that the "therapy is on-going and as such the records are not available at this writing," although "as soon as her therapy records are released to her, they will be made available."The appeal cites cases which have awarded $250,000 and more in compensatory damages and argues that an award of $300,000 would not be "unrealistic." The appeal concludes by stating that, "[o]ver and above compensatory damages for emotional harm, appellant seeks reimbursement of legal fees and compensation for incidental expenses thus far incurred."

In its comments on the appeal, the agency notes that the medical documents referred to in the final agency decision were contained in the ROI and one of the documents was cited in the RD. The agency contends that it did not act improperly when it had the documents reviewed by a licensed Registered Nurse, who is a Claims Specialist and a member of the agency's Workers' Compensation Law Branch. The agency stresses that it attempted to obtain pertinent information with respect to determining an informed award of compensatory damages, but that appellant failed to submit documentation which would permit an award of the sum requested by her. The agency further notes that compensatory damages may be awarded only for pecuniary and non-pecuniary losses post-dating the November 21, 1991, effective date of the CRA.

ANALYSIS AND FINDINGS

Legal Standards for Awarding Compensatory Damages

The CRA authorizes an award of compensatory damages as part of make-whole relief for intentional discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended. Section 1981a(b)(2) indicates that compensatory damages do not include back pay, interest on back pay, or any other type of equitable relief authorized by Title VII. Section 1981a(b)(3) limits the total amount of compensatory damages that may be awarded each complaining party for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life and other nonpecuniary losses, according to the number of individuals employed by the respondent. The limit for a respondent who has more than 500 employees is $300,000. 42 U.S.C. § 1981a(b)(3)(D).

The Commission has held that compensatory damages are recoverable in the administrative process. Jackson v. U.S. Postal Service, EEOC Appeal No. 01923399 (November 12, 1992), request for reconsideration denied, EEOC Request No. 05930306 (February 1, 1993). Thus, if a complainant has alleged that she is entitled to compensatory damages and the agency or the Commission enters a finding of discrimination, the complainant must be given an opportunity to submit evidence establishing her claim. To receive an award of compensatory damages, a complainant must demonstrate that 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. Rivera v. Department of the Navy, EEOC Appeal No. 01934157 (July 22, 1994), request for reconsid. denied, EEOC Request No. 05940927 (December 11, 1995); Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. N 915.002 at 11-12, 14 (July 14, 1992).

The Commission's July 1992 notice set forth guidelines for use in establishing entitlement to compensatory damages. Seeid. at 8-14.Such damages may be awarded for past pecuniary losses, future pecuniary losses, and nonpecuniary losses directly or proximately caused by the agency's discriminatory conduct. Pecuniary losses are out-of-pocket expenses incurred as a result of the employer's unlawful action, including job-hunting expenses, moving expenses, medical expenses, psychiatric expenses, physical therapy expenses, and other quantifiable out-of-pocket expenses. Past pecuniary losses are pecuniary losses that are incurred prior to the resolution of a complaint via a finding of discrimination, the issuance of a full-relief offer, or a voluntary settlement. Future pecuniary losses are losses that are likely to occur after resolution of a complaint. Nonpecuniary losses are losses that are not subject to precise quantification including emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, injury to character and reputation, injury to credit standing and loss of health.

Compensatory damage awards must be limited to the sums necessary to compensate a complainant for actual harm, even if the harm is intangible. Thus, a compensatory damages award should reimburse a complainant for proven pecuniary losses, future pecuniary losses, and non-pecuniary losses. A complainant has a duty to mitigate her pecuniary damages. If a respondent can prove that a complainant failed to exercise reasonable diligence to mitigate pecuniary damages, the damages award should be reduced to reflect all losses that could have been avoided with reasonable diligence. There are no precise formulas for determining the amount of damages for non-pecuniary losses. Damages awards for nonpecuniary losses that have been assessed by juries and courts have varied significantly. An award of compensatory damages for non-pecuniary losses, including emotional harm, should reflect, however, the extent to which the respondent directly or proximately caused the harm and the extent to which other factors also caused the harm. An award of compensatory damages for non-pecuniary losses should also reflect the nature and severity of the harm and the duration or expected duration of the harm.

In Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993), the Commission described the type of objective evidence that an agency may obtain 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 the 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 nonpecuniary 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. 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).

Nonpecuniary Damages Awarded

The Commission has held that evidence from a health care professional is not a mandatory prerequisite for recovery of compensatory damages for emotional distress. Lawrence v. United States Postal Service, EEOC Appeal No. 01952288 (April 18, 1996); Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995). Courts also have held that "expert testimony ordinarily is not required to ground money damages for mental anguish or emotional distress." Sanchez v. Puerto Rico Oil Co., 37 F.3d 712, 724 (1st Cir. 1994), citing Wulf v. City of Wichita, 883 F.2d 842, 875 (10th Cir. 1989); Busche v. Burkee, 649 F.2d 509, 512 n.12 (7th Cir.), cert. denied, 454 U.S. 897 (1981). A complainant's own testimony, along with the circumstances of a particular case, can suffice to sustain her burden in this regard. See U.S. v. Balistrieri, 981 F.2d 916, 932 (7th Cir. 1992), cert. denied, 114 S. Ct. 58 (1993) (housing discrimination). As the court noted in Balistrieri,"[t]he more inherently degrading or humiliating the defendant's action is, the more reasonable it is to infer that a person would suffer humiliation or distress from that action; consequently, somewhat more conclusory evidence of emotional distress will be acceptable to support an award for emotional damages."Nonetheless, we further note that the absence of supporting evidence may affect the amount of damages deemed appropriate in specific cases.

In the instant case, appellant asserts that the agency's actions caused her to suffer from nightmares and heart palpitations; that the actions detrimentally affected her marriage and her personality; and that she is apprehensive about working with males. We note that although appellant did not provide statements from health care providers or others in response to the agency's request for evidence in support of her claim for nonpecuniary damages, she offered statements from family members and a friend in support of her assertions. Thus, we find that appellant has established that she suffered emotional distress as the result of the sexual harassment and the agency's failure to respond promptly to her allegations; therefore, appellant is entitled to an award of compensatory damages.

Having determined that appellant proved that she suffered emotional distress causally connected to the agency's actions, we must next determine the amount of compensatory damages to be awarded for that harm. In determining the amount of a compensatory damages award, we are guided by the principle that a compensatory damages award is limited to the sums necessary to compensate her for the actual harm caused by the agency's discriminatory action and attempt to affix a reasonable dollar value to compensate appellant for that portion of her emotional distress and related symptoms that were caused by the agency's discrimination. See EEOC Notice No. N 915.002 at 13 (July 14, 1992).

We further note that damage awards for emotional harm are difficult to determine and that there are no definitive rules governing the amount to be awarded in given cases. In this regard, the Commission finds that a proper award must meet two goals: that it not be "monstrously excessive" standing alone and that it be consistent with awards made in similar cases. See Cygnar v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989). We further recognize that jury and court awards for nonpecuniary damages based on emotional distress have varied considerably. See, e.g., Kuntz v. City of New Haven, 3 A.D. Cas. (BNA) 1590, 1592 (D.C. Conn.) ($500.00 award for emotional distress based on plaintiff's testimony that he was "disappointed", "cranky" with family and friends, "embarrassed" at not having been promoted, and had many sleepless nights), aff'd without opinion, 29 F.3d 622 (2d Cir.), cert.denied, 115 S. Ct. 667 (1994); Sassaman v. Heart City Toyota, 66 Fair Empl. Prac. Cas. (BNA) 1230, 1236 (N.D. Ind. 1994) (jury award of $2,000.00 in non-pecuniary damages appropriate in sexual harassment case based on plaintiff's testimony concerning humiliating, degrading, and embarrassing conduct of four male supervisory employees and testimony of employer's medical expert that plaintiff likely would suffer "daily pain" having to work in hostile environment); see also Turic v. Hospitality House, Inc., 849 F. Supp. 544 (W.D. Mich. 1994) ($50,000.00 in sex and religion discrimination/termination case); EEOC v. AIC Security Investigations, Ltd., 823 F. Supp. 571 (N.D. Ill. 1993) ($50,000.00 in disability/termination case); McAdams v. United Parcel Service, Inc., 2 A.D. Cas. (BNA) 1489 (D. Minn. 1993) ($35,000.00 in failure to accommodate case).

Based on the foregoing, including the nature and severity of harm to appellant, the actual duration of the harm, and limiting the award to those damages occurring after the effective date the CRA, we find that the agency's award of $20,000 in compensatory damages for appellant's proven nonpecuniary loss is reasonable. The Commission notes that it is not persuaded that the agency acted improperly by citing in its final decision the medical documents contained in the ROI, or by having such documents reviewed by its medical personnel.

Pecuniary Damages

The Commission notes that appellant also sought an award of past and future pecuniary losses. A complainant may recover past out of-pocket expenses incurred as a result of the intentional discrimination. EEOC Notice N 915.002 at 8. Before the agency, appellant sought $480,000 in future pecuniary damages based on the assertion that her future ability to work was severely compromised by her apprehensions against working with males. It is unclear whether appellant renews this claim on appeal. Her appeal does, however, specifically state that she seeks "compensation for incidental expenses thus far incurred."Presumably, these expenses would include any charges for both her prior medical and therapeutic expenses, as well as expenses incurred in the "on-going therapy" also referred to in the appeal.

We find no basis upon which to award pecuniary damages. Appellant has submitted no receipts for past therapeutic or medical expenses. In addition, appellant fails to offer any explanation as to why such receipts or her records pertaining to her current therapy are "not available." Accordingly, we find no basis to award future pecuniary damages. While appellant clearly implies that she will be visiting her therapist in the future, her failure to provide any documentation of the nature, extent or duration of any such therapy precludes an award of future pecuniary damages. See, e.g., Smith v. Department of Defense, EEOC Appeal No. 01943844 (May 9, 1996). Similarly, appellant has failed to establish her claim for future pecuniary damages based on her claim that her future ability to work is impaired. As noted by the agency, appellant's testimony at the hearing establishes that she succeeded in obtaining employment after leaving the agency. Appellant simply has not offered sufficient proof to support her claim.

CONCLUSION

Based upon a thorough review of the record, and for the foregoing reasons, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the agency's final decision.

ORDER

To the extent that it has not already done so, the agency is ORDERED to take the remedial actions specified in its final agency decision, as follows:
1. Appellant is to be offered reinstatement as an HPP Grade 5 Exchange Detective, effective April 13, 1992. Appellant's employment records shall be expunged to delete her resignation from employment on that date and to delete any information pertaining to this EEO complaint or any adverse materials relating to the complaint. Appellant shall be awarded backpay and interest computed in accordance with 5 C.F.R. §555.805, eligibility for step advancements, wage adjustments and all other benefits which she would have accrued had she not resigned from employment on April 13, 1992. Appellant shall cooperate in the agency's efforts to compute the amount of backpay to which she is entitled.
2. Appellant's sick leave balance as of April 13, 1992, shall be reinstated and she shall be credited with accrued sick leave in accordance with agency regulations as though she had been in continuous service until such time as she is reinstated or declines an offer of reinstatement.
3. The agency shall provide remedial training for all managers and supervisors located at Hanau Consolidated Exchange to ensure that acts of sexual harassment do not recur and that no retaliatory acts are taken against any employee who opposes unlawful discrimination, including sexual harassment.
4. The Commander, AAFES-Europe, will determine the nature of disciplinary action to be imposed upon responsible officials of AAFES-Europe, as appropriate.
5. The agency shall issue a check to the appellant for $20,000 within sixty (60) calendar days of the date this decision becomes final.

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 (G1092)

The agency is ORDERED to post at its Hanau Consolidated Exchange, Germany, 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 (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. See29 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. See29 C.F.R. §1614.410.

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, MUSTBEFILEDWITHINTHIRTY (30) CALENDARDAYS 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 WITHINTWENTY (20) CALENDARDAYS 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. § 1614.604(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 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 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 (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 etseq.; 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:

Frances M. Hart
Executive Officer
Executive Secretariat

September 19, 1996

1. The supervisor was called Dick and his inspiration for this term was the television series "Charlie's Angels."

2. Section 102(a) of the Civil Rights Act of 1991, 105 Stat. 1071, Pub. L. No. 102-106, codified at 42 U.S.C. §1981a, authorizes an award of compensatory damages as part of make-whole relief for intentional discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended. Compensatory damages may be awarded for all pecuniary and non-pecuniary losses post-dating the November 21, 1991, effective date of the Act. See Landgraf v. USI Film Products, 114 S. Ct. 1483 (1994).


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 Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e etseq. 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 United States Postal Service affirms its commitment to comply with these statutory provisions.

The Department of Defense (Army & Air Force Exchange Service), Hanau Consolidated Exchange, Germany supports and will comply with such Federal law and will not take action against individuals because they have exercised their rights under law.

The Department of Defense (Army & Air Force Exchange Service), Hanau Consolidated Exchange, Germany has remedied the employee affected by the Commission's finding. The Department of Defense (Army & Air Force Exchange Service), Hanau Consolidated Exchange, Germany 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.

The Department of Defense (Army & Air Force Exchange Service), Hanau Consolidated Exchange, Germany will not in any manner restrain, interfere, coerce, or retaliate against any individual who exercises his or her right to oppose practices made unlawful by, or who participates in proceedings pursuant to, Federal equal employment opportunity law.

29 C.F.R. Part 1614