• Monday, January 26, 2015

    Federal Employee Attorney Joseph Kaplan



    Sometimes we find that a federal employee attorney like Joseph Kaplan, can help a federal employee with their discrimination claim and exceed a low award, that is so common with discrimination claims. If there was no federal cap, this claim would have been awarded $3 Million dollars as originally decided by Jury Verdict.

    Lisa Bremer v. Department of Commerce  (Bremer v. Gutierrez, D.D.C. No. 1:03CV01338)

    Ms. Bremer was represented by Washington, D.C. lawyer Joseph V. Kaplan, of Passman & Kaplan, P.C.

    Passman & Kaplan, P.C., Attorneys at Law

    1828 L Street, N.W., Suite 600
    Washington, DC 20036
    Phone: 202-789-0100
    Toll Free: 800-881-0140
    Fax: 202-789-0101


    On July 10, 2007, a District of Columbia federal judge ordered the Department of Commerce to pay $303,881 in additional relief for Lisa Bremer, a disabled federal employee, who worked at the Department of Commerce until the Department revoked her right to telecommute three days a week. (Bremer v. Gutierrez, D.D.C. No. 1:03CV01338). In August 2005, a jury determined that Commerce discriminated against Ms. Bremer and violated the Rehabilitation Act (the statute which protects the rights of federal workers with disabilities) when it removed her reasonable accommodation, and awarded her $3 million in compensatory damages for emotional and physical distress. By law, that jury verdict was reduced to $300,000. After the trial, Commerce filed a motion to overturn the jury's verdict but the judge denied that motion.

    Although the jury was empowered to award compensatory damages, which could compensate for effects of the discrimination such as emotional distress, physical pain, and out-of-pocket expenses, the jury did not have the authority to decide "equitable relief." Equitable relief can constitute such items as reinstatement, back pay, back benefits and front pay, and are solely within the judge's purview to grant.

    After the judge denied the Commerce Department's motion to set aside the jury verdict, Ms. Bremer's attorney filed a motion for equitable relief. Ms. Bremer sought back pay and benefits, from the time she was forced to apply for disability retirement until the date of the jury's verdict - two years and 10 months later - as well as front pay. In addition to lost pay, the benefits Ms. Bremer sought included lost annual leave and the value of the agency's contributions to her Thrift Savings Plan had she remained an employed by the agency, all with interest.

    The Commerce Department objected to awarding Ms. Bremer any equitable relief, arguing that Ms. Bremer "voluntarily" resigned her position by applying for disability retirement. The judge disagreed and held that Ms. Bremer was presumed entitled to back pay and benefits because the jury found that she had been discriminated against. The judge did not, however, award front pay because Ms. Bremer could have continued to look for employment after her disability retirement. The judge then ordered Ms. Bremer's attorney to submit a proposed order on the amount of back pay and benefits to which Ms. Bremer was entitled to be paid by the Department of Commerce.

    After receiving the proposed order from Ms. Bremer's counsel, with its accompanying expert opinion from an economist, the judge ordered an additional payment of $303,881 to compensate Ms. Bremer for the back pay and benefits she lost because she was unable to work after the Department of Commerce refused to continue to accommodate her multiple sclerosis. The back pay portion of the order was already offset by the amount Ms. Bremer received in disability annuity payments.

    In total, as a consequence of its discriminatory act of revoking Ms. Bremer's partial work-at-home accommodation, the Commerce Department of Commerce is now required to pay Ms. Bremer in excess of $600,000. It is expected that Ms. Bremer's counsel will next ask the Judge to order the Commerce Department to reimburse Ms. Bremer for the attorney fees and costs incurred in bringing this matter to justice.

    This article also appears in FEDweek ( www.fedweek.com), a weekly newsletter for federal employees.

    On August 10, 2005, a District of Columbia federal jury today awarded $3 million to Lisa Bremer, a disabled federal employee, who worked at the Department of Commerce until the department revoked her right to telecommute. Ms. Bremer, who was diagnosed with multiple sclerosis in 1991, worked successfully from home for eight years as a lawyer at Commerce by working from home two days a week. During that time, Ms. Bremer was consistently rated “outstanding” and received numerous performance awards. The jury found for the plaintiff on her claim that the department failed to provide her a reasonable accommodation required by law when the department revoked Ms. Bremer’s accommodation. Under the provisions of the Rehabilitation Act, the award will be reduced to $300,000.
    Ms. Bremer, formerly a GS-15 attorney in the Economic Development Administration’s (EDA) Office of Chief Counsel, was forced to leave on disability retirement after Commerce took away her reasonable accommodations. Commerce’s own medical officer stated Ms. Bremer’s accommodations were reasonable and medically necessary, but Commerce rescinded them anyway.
    Commerce hired Ms. Bremer in 1987. In 1990, she began experiencing difficulty walking and was soon, at the age of 29, diagnosed with MS. Within a few years, Ms. Bremer had to rely on a cane. By 1994, Ms. Bremer had to rely on a walker. By 2002, Ms. Bremer had to rely on a wheelchair.
    In 1991, Commerce approved Ms. Bremer’s physician’s request that it accommodate her by placing her on a flexible work schedule. In 1993, Commerce approved the request of Ms. Bremer’s physicians that she be permitted to telecommute two days per week. In 1996, Commerce purchased a motorized scooter for Ms. Bremer to use in the office, because of the rapid deterioration of her walking ability. Ms. Bremer’s physicians considered these accommodations essential given the severity of Ms. Bremer’s MS.
    In 2001, Commerce demanded Ms. Bremer provide medical documentation to justify her need for a telecommuting schedule, despite knowing that she had multiple sclerosis and had received “outstanding” performance ratings and performance awards for years. Ms. Bremer provided the requested medical documentation.
    In November 2001, Commerce’s own chief medical officer found that Bremer’s medical documentation provided “very strong support” for the continuation of Ms. Bremer’s telecommuting schedule. Commerce revoked Ms. Bremer’s right to telecommute in February 2002, despite the advice of its own medical officer.
    Following the advice of her doctors, who feared her condition was worsening, Ms. Bremer did not return to work without these medically needed accommodations. She was forced to retire on federal disability in April 2003. The judge will determine the “equitable relief” to which Ms. Bremer was entitled, such as front and back pay.
    Ms. Bremer was represented by Passman & Kaplan founding partner Joseph V. Kaplan. Bremer v. Gutierrez, C.A. No. 1:03CV01338 (D.D.C. 2005).

    Federal Employee Attorney Josh Bowers

    Federal Employee Attorney Bowers
    Federal Employee Attorney


    Federal employee Lawyer Josh Bowers has given us some much needed references to eeoc unlawful discrimination's that were awarded at least $100,000. You can contact Attorney Bowers at:

    Josh F. Bowers, P.C.
    1100 Wayne Avenue Suite 900
    Silver Spring, MD 20910

    301-565-0090
    JBdclaw{at}aol.com

    At the law office of Josh F. Bowers, P.C., we're dedicated to protecting the rights of federal employees to be free from wrongful employment actions, discrimination and harassment.

    Gay v. Dep't of the Navy 07a20089 (October 9, 2003)

    Munno v. Dep't of Agriculture 01a01734 (February 8,2001)

    McCormick v. Dep't of Justice (FBI) 072010040 (November 23, 2011)

    Dep't of the Treasury, Internal revenue Service, Wage and Investment Divisoon, Austin, Texas and NTEU, chapter 72, 65 FLRA No. 198 (June 27, 2011)

    Fonda-Wall v. Dep't of Justice 0720060035 (July 29, 2009)

    Blount v. Dep't of Homeland Security 0720070010 (October 21, 2009) 0520100148 (April 16,2010)

    Glockner v. Dep't of Veteran's Affairs 07A30105 (September 23, 2004)

    Sebek v. Attorney General 07a00005 (March 8, 2001)

    Looney v. Dep't of Homeland Security 07a40124, 01a53252 (May 19, 2005)

    Mack v. Dep't of Veterans Affairs 01983217 (June 23, 2000) 05a01058 (October 26, 2000)

    Debra Meachum, Teresa Abbott v. SSA 0720120003 (September 9,2013)

    Neville v. Dep't Air Force, National Guard Bureau 0720110023 (August 1, 2013)

    Durrell Williams v. USPS 0120130887 (May 31, 2013)

    Marcus Smith v. Dep't of Transportation MSPB Docket AT-0752-05-0901-P-1, 2012 MSPB Lexis 4948
    (August 24, 2012)

    Lemons v. Dep't of justice, Bureau of Prisons 0120102516 (November 16, 2011)

    Cahn v. USPS 0720060029 (September 5, 2008)

    Padilla v. USPS 0120090062 (September 21, 2010)

    Nenville v. Dep't of Air Force (National guard Bureau) 072011023 (August 1, 2013)

    Garcia v. Dep't of justice (DEA) 0120122033 (June 7, 2013)

    Coopwood v. Dep't of Transportation (FAA) 0120083127 (May 2, 2012)

    Brown-Fleming v. Dep't of Justice 0120082667 (October 28, 2010)

    Estate of Roop v. Dep't of Homeland Security 0720090056 (October 21, 2010)

    Lopez-Rosende V. USPS 0120102789 (November 30, 2010)

    Solomon v. Dep't of Navy 0720070071 (March 3, 2008)

    Goodridge v. SSA 07200500261 (November 15, 2006)

    Tyner v. Dep't of Veterans Affairs 0720060032 (October 23, 2007)

    Furch v. Dep't of Agriculture 07a40094 (2005)

    Kloock v. Postmaster general 01a31159 (2004)

    VanDesande v. Postmaster general 07a40037 (2004)

    Estate of Nason v. Postmaster general 01a01563 (2001)

    Franklin v. USPS 07a00025; 01a03882 (January 19, 2001)

    Booker v. Dep't of Defense 07a00023 (August 10, 2000)

    Fellows-Gilder v. Dep't of Homeland Security 0720070046 (January 31, 2008)

    Terban v. Dep't of Energy 0720040117 (April 3, 2008)

    Burton v. Dep't of Interior 0720050066 (March 6, 2007)

    Read v. Dep't of Homeland Security 01a50353 (March 29, 2005)

    Cook v. Postmaster General 01950027 (1983)

    Dunn v. Dep't of Air Force 0720110021 (February 10,2012)

    Jackson v. Dep't of Air Force 0720110036 (March 13, 2012)

    Champion v. USPS 0720090037 (March 10, 2010)

    Davis v. Dep't of Homeland Security 0720060003 (June 18, 2007) 0520070778 (September 25,2007)

    Cleland v. Dep't of Veterans Affairs 01970546 (August 9, 2000)

    Hendley v. Attorney general 01a20977 (2003)

    George v. Dep't of Health & Human Serv. 07a30079 (July 21, 2004)

    Anvari v. Dep't of Veteranss Affairs 01996155 (March 21,2002) 05a20546 (July 15,2002)

    Santiago v. Dep't of the Army 01955684 (October 14,1998)

    Aponte v. Dep't of Homeland Security 0120063532 (June 11,2008) 0520080673 (September 10,2008)

    Moore v. USPS 0720050084 (March 6,2007)

    Durinzi v. USPS 01a41946 (July 28,2005) 05a51158 (October 10,2005)

    Chastain v. Dep't of Navy 0120102409 (November 17, 2010) 0520110240 (March 31,2011)

    Sanford v. Postmaster general 01a31818 (2004) 

    Rivers v. Dep't of Treasury 01992843 (2002)

    Winkler v. Dep't of Agriculture 01975336 (June 7,2000)

    Brinkley v. USPS 01953977 (1998)

    St. Louis v. Dep't of Agriculture 01986846 (2000)

    Auston, IV, V. Dep't of Veterans Affairs 0120112574 (July 19,2012)

    Guess v. EPA 0720110029 (June 12,2012)

    Fivecoat v. Dep't of Air Force 0720110035 (May 15,2012)

    Small v. USPS 0720100031 (April 5,2012)

    Spence v. Nuclear Regulatory Commission 0120093196 (September 13, 2012) 0520130050 (March 15,2013)

    Mohar v. USPS 0720100019 (August 29, 2011)

    Conrad v. Dep't of Justice 0120090690 (April 9, 2010) 0520100327 (February 4,2011)

    Maeso v. DHS 0720080003 (February 26,2009)

    Gray v. Dep't of Interior 0120072136 (July 24,2009)

    Sainz v. Dep't of Treasury 0720030103

    Sorg v. Dep't of Commerce 0720060065 (July 23,2008) 0520080765 (December 17,2008)

    Kahn v. Dep't of the Interior 07a50039 (September 28,2005)

    Mika v. Dep't of the Air Force 07a40113 (2005)

    Green v. Potter, Postmaster General USPS 01a44490 (July 19,2005)

    Dildy v. Dep't VA 07a40115 (March 24,2005) 05a50787 (July 22,2005)

    Ellis-Balone v. Dep't of Energy 07a30125 (2004)

    Holland v. SSA 01a01372 (October 2, 2003)

    Yasko v. Dep't of Army 01a32340 (April 21, 2004)

    Hendley v. Dep't of Justice 01a20977 (May 15,2003) 05a30962 (January 14,2004)

    Janda v. USPS 07a10018 (March 4, 2002)

    Patel v. Dep't of Army 01980279 (September 26.2001)

    Leatherman v. Dep't of the Navy 01a1222 (2001)

    Chow v. Dep't of Army 01981308 (August 5,1999)

    Kelly v. Dep't of VA 01951729 (July 29,1998)

    Finlay v. USPS 01942985 (April 20, 1997)


    Thank you Josh Bowers for bringing the above claims to our attention. You are a true American Hero.

    Robson









    What is the largest award to federal employee in an EEOC claim of unlawful discrimination?



    My friend Pete Cogdell commented about a question I posed if anyone knew of an EEOC case that was awarded over $300,000. He replied with:

     Donald Gay vs. Department of the Navy, EEOC Appeal No. 07A20089 (October 9, 2003)

    Appellate Process
    EEOC Declines to Set Aside $300,000 Award in Face of Agency Untimely Appeal. Finding that the agency untimely filed its appeal from an AJ's award of $300,000 in non-pecuniary compensatory damages, the Commission stated that the agency was not permitted to challenge any aspect of the AJ's decision. Therefore, the Commission declared that it would make no determination as to the appropriateness of the AJ's finding of discrimination or of the amount awarded in compensatory damages. Gay v. Department of the Navy, EEOC Appeal No. 07A20089 (October 9, 2003).

    Case Conclusion Date:March 11, 2004

    Practice Area:Discrimination
    Outcome:Decision for Petitioner

    Description:Petitioner filed EEO complaint against Department of Navy, Trident Refit Facility, in Kings Bay, Georgia for harassment and discrimination. EEOC Administrative Judge Philip Davi found in favor of petitioner and awarded back pay, emotional distress damages in the amount of $300,00.00 and attorneys fees. The case was appealed to the EEOC Office of Federal Operations. The decision was upheld and the agency was ordered to take the following remedial action: A. The agency shall pay back pay, with interest, and other benefits due complainant, pursuant to 29 C.F.R. § 1614.501, retroactive to August 10, 1998, and continuing until April 15, 2002, the date the AJ's decision became the agency's final action. The agency's determination must take place no later than 60 calendar days after the date this decision becomes final. B. Within 60 calendar days after this decision becomes final, the agency shall issue a check to complainant for $ 300,000.00, in payment for non-pecuniary compensatory damages. C. Within 60 calendar days after this decision becomes final, the agency shall issue a check to complainant for attorney fees. D. The agency shall provide EEO training to the individuals who, in August 1998, held the following positions: the Director of the Trident Refit Facility, complainant's first and second level supervisors and the Light Duty Manager. This training will educate these individuals on their duties and obligations under Section 501 of the Rehabilitation Act of 1973. E. The agency shall consider taking disciplinary action against individuals who, in August 1998, held the following positions: the Director of the Trident Refit Facility, complainant's first and second level supervisors and the Light Duty Manager. The agency shall report its decision. If the agency decides to take disciplinary action, it shall identify the action taken. If the agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. 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 back pay and other benefits due complainant, including evidence that the corrective action has been implemented. The agency shall copy the report and its supporting documentation to the complainant.

    Here is a direct piece from EEOC

    Donald G. Gay v. the Department of the Navy
    07A20089
    10-09-03
    .
    
    
    
    Donald G. Gay,
    Complainant,
    
    v.
    
    Hansford T. Johnson,
    Acting Secretary,
    Department of the Navy,
    Agency.
    
    Appeal No. 07A20089
    
    Agency Nos. 99-44466-002
                       99-44466-006
    Hearing No.  110-99-8320X
    
    DECISION
    
    On April 18, 2002, the agency filed an appeal with this Commission
    concerning complainant's equal employment opportunity (EEO) complaint
    of unlawful employment discrimination in violation of Section 501 of
    the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
    U.S.C. 791 et seq.  In the underlying complaint, complainant, a Plastic
    Fabricator, WG-4352-10, at the Trident Refit Facility, King's Bay,
    Georgia, alleged that he was discriminated against on the basis of his
    disability (anxiety/stress disorder) and in retaliation for engaging in
    prior EEO activity when: (1) on August 5, 1998, he was denied a reasonable
    accommodation when he received a memorandum directing him to return to his
    previous shop for the assignment of regular duties; and (2) management
    failed to process his CA-8 Form in a timely manner.  At the conclusion
    of the investigation, complainant received a copy of the investigative
    report and requested a hearing before an EEOC Administrative Judge (AJ).
    
    On September 27, 2001, at the conclusion of the hearing, the AJ issued
    a bench decision finding, among other things, that complainant was a
    qualified individual with a disability and that he was discriminated
    against as set forth above.  On March 6, 2002, the agency received a
    copy of the AJ's decision, his awards concerning compensatory damages
    and attorney's fees and the hearing transcripts.  On April 15, 2002,
    the agency issued its notice of final order and appeal.  On April 18,
    2002, the agency filed its appeal with the Commission.<1>
    Pursuant to 29 C.F.R. § 1614.110(a), if an agency decides not to fully
    implement the decision of an administrative judge then it must first issue
    a final order and then simultaneously file an appeal with the Commission
    in accordance with 29 C.F.R. § 1614.403.  A copy of the appeal must be
    appended to the final order.  The Commission's Management Directive 110
    (EEO MD-110), November 9, 1999, provides that if the agency fails to
    issue a final order and file an appeal with the issuance of the order,
    the Administrative Judge's decision will be deemed ratified by the agency
    upon the expiration of the agency's 40-day period for accepting or not
    accepting the Administrative Judge's decision.  EEO MD-110, 9-7, note 4.
    
    In the instant case, we find that the agency filed its appeal in an
    untimely manner.  We note in this regard that although the agency, on
    March 6, 2002, received a copy of the AJ's decision, his awards concerning
    compensatory damages and attorney's fees and the hearing transcripts,
    it did not file its appeal with the Commission until April 18, 2002,
    which was beyond the 40-day filing period.<2>  Since the agency's appeal
    was untimely, we find that it failed to take final action during the
    40-day period set forth at 29 C.F.R. § 1614.110(a).  Accordingly, the
    AJ's decisions became the final action of the agency on April 15, 2002.
    McCue v. United States Postal Service, EEOC Appeal No. 01A13411 (August
    8, 2002).
    
    On appeal, the agency contends, among other things, that complainant was
    not an individual with a disability and that the award of $300,000.00
    in non-pecuniary compensatory damages was excessive.  However, because
    the agency's failure to timely file its appeal constitutes a failure to
    take action during the 40-day period set forth at 29 C.F.R. § 1614.110(a),
    the agency is not permitted to challenge any aspect of the AJ's decisions.
    McCue, supra.  Therefore, the Commission will make no determination as to
    the appropriateness of the  finding of discrimination or of the amount
    awarded in compensatory damages.  Accordingly, the agency's appeal
    is DISMISSED.  The Commission directs the agency to provide relief
    consistent with the AJ's decision, as stated in the Order below.
    
    ORDER
    
    The agency is ordered to take the following remedial action:
    
    1.  The agency shall determine the appropriate amount of back pay, with
    interest, and other benefits due complainant, pursuant to 29 C.F.R. §
    1614.501, retroactive to August 10, 1998, and continuing until April
    15, 2002, the date the AJ's decision became the agency's final action.
    The agency's determination must take place no later than 60 calendar days
    after the date this decision becomes final.<3>  The complainant shall
    cooperate in the agency's efforts to compute the amount of back pay and
    benefits due, and shall provide all relevant information requested by
    the agency.  If there is a dispute regarding the exact amount of back
    pay and/or benefits, the agency shall issue a check to the complainant
    for the undisputed amount within 60 calendar days of the date the
    agency determines the amount it believes to be due.  The complainant
    may petition for enforcement or clarification of the amount in dispute.
    The petition for clarification or enforcement must be filed with the
    Compliance Officer, at the address referenced in the statement entitled
    "Implementation of the Commission's Decision."
    
    2.  Within 60 calendar days after this decision becomes final, the
    agency shall issue a check to complainant for $300,000.00 in payment
    for non-pecuniary compensatory damages.
    
    3.  Within 60 calendar days after this decision becomes final, the
    agency shall issue a check to complainant for $15,093.00 in payment for
    attorney fees.
    
    4.  The agency shall provide EEO training to the individuals who, in
    August 1998, held the following positions:  the Director of the Trident
    Refit Facility, complainant's first and second level  supervisors and
    the Light Duty Manager.  This training will apprize these individuals on
    their duties and obligations under  Section 501 of the Rehabilitation Act
    of 1973.  The Commission does not consider training to be a disciplinary
    action.
    
    5.  The agency shall consider taking disciplinary action against
    individuals who, in August 1998, held the following positions:  the
    Director of the Trident Refit Facility, complainant's first and second
    level  supervisors and the Light Duty Manager.  The agency shall report
    its decision.  If the agency decides to take disciplinary action, it
    shall identify the action taken.  If the agency decides not to take
    disciplinary action, it shall set forth the reason(s) for its decision
    not to impose discipline.
    
    6.  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 back pay and other benefits due complainant,
    including evidence that the corrective action has been implemented. The
    agency shall copy the report and its supporting documentation to the
    complainant.
    
    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.
    
    POSTING ORDER (G0900)
    
    The agency is ordered to post at its Trident Refit Facility, located in
    King's Bay, Georgia, 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.
    
    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:
    
    
    ______________________________
    Frances M. Hart
    Executive Officer
    Executive Secretariat
    
    
    __10-09-03________________
    Date
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
                                               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 Section 501 of the Rehabilitation Act of 1973,
    as amended, 29 U.S.C. § 791et 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 DISABILITY with respect to hiring, firing,
    promotion, compensation, or other terms, conditions or privileges
    of employment.  The Department of the Navy, Trident Refit Facility,
    located in King's Bay, Georgia (Trident Refit Facility) confirms its
    commitment to comply with these statutory provisions.
    
    The Trident Refit Facility supports and will comply with such Federal law
    and will not take action against individuals because they have exercised
    their rights under the law.
    
    The Trident Refit Facility has been found to have discriminated against
    an employee when it denied him a reasonable accommodation and failed
    to timely process his workers' compensation forms.  The Trident Refit
    Facility has been directed to remedy the employee by, among other things,
    providing him with back pay, compensatory damages, attorney's fees and
    other benefits commensurate with what he would have received had he not
    been discriminated against.  The Trident Refit Facility will ensure
    that reasonable accommodations are provided to qualified individuals
    with disabilities and that officials responsible for making personnel
    decisions and establishing the terms and conditions of employment will
    abide by the requirements of the Rehabilitation Act.
    
    The Trident Refit Facility 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 16141The agency's appeal was postmarked April 18, 2002.
    Appeals are deemed filed on the date received by the Commission, unless
    postmarked earlier.
    
    2The last day for filing a timely appeal with the Commission was Monday,
    April 15, 2002.
    
    3We do not order complainant's reinstatement because of the AJ's
    determination that complainant would most likely be unable to work again.
    
    ========================================
    Here is a denial from EEOC:
    
    
    Donald G. Gay v. Department of the Navy
    05A40219
    03-11-04
    .
    
    
    
    Donald G.  Gay,
    Complainant,
    
    v.
    
    Hansford T. Johnson,
    Acting Secretary,
    Department of the Navy,
    Agency.
    
    Request No. 05A40219
    
    Appeal No. 07A20089
    Agency Nos. 99-44466-002; 99-44466-006
    Hearing No. 110-99-8320x
    
     DENIAL OF REQUEST FOR RECONSIDERATION
    
    On November 13, 2003, the Department of the Navy timely initiated a
    request to the Equal Employment Opportunity Commission to reconsider
    the decision in Donald G. Gay v. Department of the Navy, EEOC Appeal
    No. 07A20089 (October 9, 2003).  EEOC Regulations provide that the
    Commission may, in its discretion, reconsider any previous Commission
    decision where the requesting party demonstrates 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.  See 29 C.F.R. §
    1614.405(b).
    
    After a review of the agency's request for reconsideration, the previous
    decision, and the entire record, the Commission finds that the request
    fails to meet the criteria of 29 C.F.R. § 1614.405(b), and it is the
    decision of the Commission to deny the request.  The decision in EEOC
    Appeal No. 07A20089 remains the Commission's final decision.  There is no
    further right of administrative appeal on the decision of the Commission
    on this request for reconsideration.  The agency is directed to comply
    with the Order, below.
    
    ORDER
    
     The agency is ordered to take the following remedial action:
    
    A.  The agency shall determine the appropriate amount of back pay,
    with interest, and other benefits due complainant, pursuant to 29
    C.F.R. § 1614.501, retroactive to August 10, 1998, and continuing
    until April 15, 2002, the date the AJ's decision became the agency's
    final action. The agency's determination must take place no later
    than 60 calendar days after the date this decision becomes final.<1>
    The complainant shall cooperate in the agency's efforts to compute the
    amount of back pay and benefits due, and shall provide all relevant
    information requested by the agency. If there is a dispute regarding the
    exact amount of back pay and/or benefits, the agency shall issue a check
    to the complainant for the undisputed amount within 60 calendar days
    of the date the agency determines the amount it believes to be due. The
    complainant may petition for enforcement or clarification of the amount
    in dispute. The petition for clarification or enforcement must be filed
    with the Compliance Officer, at the address referenced in the statement
    entitled "Implementation of the Commission's Decision."
    
    B.  Within 60 calendar days after this decision becomes final, the
    agency shall issue a check to complainant for $300,000.00, in payment
    for non-pecuniary compensatory damages.
    
    C.  Within 60 calendar days after this decision becomes final, the
    agency shall issue a check to complainant for $15,093.00 in payment for
    attorney fees.
    
    D.  The agency shall provide EEO training to the individuals who, in
    August 1998, held the following positions: the Director of the Trident
    Refit Facility, complainant's first and second level supervisors and
    the Light Duty Manager. This training will educate these individuals on
    their duties and obligations under Section 501 of the Rehabilitation Act
    of 1973. The Commission does not consider training to be a disciplinary
    action.
    
    E.  The agency shall consider taking disciplinary action against
    individuals who, in August 1998, held the following positions: the
    Director of the Trident Refit Facility, complainant's first and second
    level supervisors and the Light Duty Manager. The agency shall report
    its decision. If the agency decides to take disciplinary action, it
    shall identify the action taken. If the agency decides not to take
    disciplinary action, it shall set forth the reason(s) for its decision
    not to impose discipline.
    
    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 back pay and other benefits due complainant,
    including evidence that the corrective action has been implemented. The
    agency shall copy the report and its supporting documentation to the
    complainant.
    
    POSTING ORDER (G0900)
    
    The agency is ordered to post at its Trident Refit Facility, King's Bay,
    Georgia, 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 COMPLAINANT'S RIGHTS ON REQUEST TO RECONSIDER
    
    COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
    
    This decision of the Commission is final, and there is no further right
    of administrative appeal from the Commission's decision.  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.
    
    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
    
    
    ____03-11-04______________
    Date
    
    
    
    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 Rehabilitation Act of 1973, as
    amended, 29 U.S.C. §§ 791, 794(c), 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 DISABILITY with respect to hiring, firing,
    promotion, compensation, or other terms, conditions or privilege of
    employment.
    
    The Department of the Navy's Trident Refit Facility has been found to
    have discriminated against an employee when it denied him a reasonable
    accommodation and failed to timely process his workers' compensation
    forms. The Trident Refit Facility has been directed to remedy the employee
    by, among other things, providing him with back pay, compensatory
    damages, attorney's fees and other benefits commensurate with what he
    would have received had he not been discriminated against. The Trident
    Refit Facility will ensure that reasonable accommodations are provided
    to qualified individuals with disabilities and that officials responsible
    for making personnel decisions and establishing the terms and conditions
    of employment will abide by the requirements of the Rehabilitation Act.
    
    The Trident Refit Facility 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 1614.
    
    1We do not order complainant's reinstatement because of the AJ's
    determination that complainant would most likely be unable to work again.
    
    ==================================
    Here is an appeal that referenced Donald Gay's claim and won:
    
    
    
    
    Estella Sugawara-Adams,
    Complainant,
    
    v. 
    
    Stephen L. Johnson,
    Acting Administrator,
    Environmental Protection Agency,
    Agency.
    
    Appeal No. 0720070050
    
    Agency No. 2005-0081-R06
    
    Hearing No.  450-2006-00103X
    
    DECISION
    
    On May 10, 2007, the agency filed an appeal with this Commission
    concerning complainant's equal employment opportunity (EEO) complaint
    of unlawful employment discrimination in violation of Title VII of
    the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. §
    2000e et seq.  In the underlying complaint, complainant, a Section
    Chief of the Compliance Section in the Water Enforcement Branch,
    alleged that she was discriminated against on the bases of race
    (Asian American), national origin (Japanese), sex (female), and/or in
    retaliation for prior EEO activity when: (1) on August 3, 2005, she
    received an unsatisfactory interim performance rating; (2) as a result
    of the unsatisfactory interim performance rating, she was demoted from
    her GS-14 Section Chief position, effective August 21, 2005; and (3)
    management's actions created and allowed a hostile work environment.
    At the conclusion of the agency's investigation of her complaint,
    complainant received a copy of the investigative report and requested
    a hearing before an EEOC Administrative Judge (AJ).  
    
    The AJ assigned to the matter held a two day hearing during which nineteen
    witnesses testified.  On March 26, 2007, the AJ issued a decision finding,
    among other things, that complainant proved by a preponderance of the
    evidence that the agency acted in reprisal with respect to her claim
    of disparate treatment.  She mailed her decision to the agency's Office
    of Civil Rights (OCR) and the agency's designated representative on the
    aforesaid date.  The record reveals that OCR received a copy of the AJ's
    decision on March 30, 2007, and the agency's designated representative
    received it on April 2, 2007.  On May 10, 2007, the agency issued its
    notice of final order and appeal.  
    
    Pursuant to 29 C.F.R. § 1614.110(a), if an agency decides not to fully
    implement the decision of an Administrative Judge then it must first issue
    a final order and then simultaneously file an appeal with the Commission
    in accordance with 29 C.F.R. § 1614.403.  A copy of the appeal must be
    appended to the final order.  The Commission's Management Directive 110
    (EEO MD-110), November 9, 1999, provides that if the agency fails to
    issue a final order and file an appeal with the issuance of the order,
    the Administrative Judge's decision will be deemed ratified by the agency
    upon the expiration of the agency's 40-day period for accepting or not
    accepting the Administrative Judge's decision.  EEO MD-110, 9-7, n. 4.  
    
    In the present case, we find that the agency filed its appeal in an
    untimely manner.  We note in this regard that although the agency's
    OCR received a copy of the AJ's decision on March 30, 2007, it did
    not file its appeal with the Commission until May 10, 2007, which
    was beyond the 40-day filing period.  On appeal, the agency contends
    that the 40-day period should begin to run on April 2, 2007, the date
    the agency's designated representative received the AJ's decision,
    and the date the AJ's decision was presumed received by OCR.  Due to
    Commission precedent, both arguments must fail.  First, the Commission
    has held that the practice and policy of the Commission is to send
    correspondence relating to the disposition of the case to the agency
    headquarters office that is designated to handle such matters, and the
    agency headquarters office's receipt of the relevant correspondence is
    the operative date for determining timeliness.  Robinson v. Department
    of the Army, EEOC Request No. 05930965 (September 22, 1994); Miller
    v. United States Postal Service, EEOC Request No. 05A40871 (June 29,
    2006) (Agency appeal was found timely where the Administrative Judge
    erred by sending her decision solely to the agency's representative,
    rather than the headquarters office designated to handle such matter).
    In this case, OCR is the headquarters office designated to handle such
    matters; the agency's designated representative is not.1  Therefore,
    the Commission finds that the date OCR received the AJ's decision is
    the controlling date for determining timeliness.  
    
    Second, the Commission has used the 5-day presumption rule only where
    a document does not bear a legible postmark or there is no proof of the
    date of receipt.  Coker v. Environmental Protection Agency, EEOC Request
    No. Request No. 05890869 (November 2, 1989); Greene v. Department of the
    Army, EEOC Request No. 05880882 (March 3, 1989).  The 5-day presumption
    rule, however, does not operate where proof exists of the actual date
    of receipt of a document.  In the present case, the record reveals that
    OCR actually received the AJ's decision on March 30, 2007, and the 5-day
    presumption rule need not, and cannot, be applied.  For the foregoing
    reasons, we conclude that the agency's appeal was untimely filed.
    Therefore, since the agency's appeal was untimely, we find that the
    agency failed to take final action during the 40-day period set forth
    at 29 C.F.R. § 1614.110(a).  The AJ's decision accordingly became the
    final action of the agency on May 9, 2007.  McCue v. United States Postal
    Service, EEOC Appeal No. 01A13411 (August 8, 2002); Gay v. Department
    of the Navy, EEOC Appeal No. 07A20089 (October 09, 2007).
    
    On appeal, the agency also presented arguments on the merits of the
    case, asserting, among other things, that AJ disregarded settled law
    by awarding compensatory damages and excessive attorney's fees and
    costs to complainant, who only partially prevailed on one claim of
    discrimination.  However, because the agency's failure to timely file
    its appeal constitutes a failure to take action during the 40-day period
    set forth at 29 C.F.R. § 1614.110(a), the agency is not permitted to
    challenge any aspect of the AJ's decisions.  McCue, supra.  Therefore,
    the Commission will make no determination as to the appropriateness of the
    finding of discrimination or of the amount awarded in compensatory damages
    or attorney's fees.  Accordingly, the agency's appeal is hereby dismissed.
    The Commission directs the agency to provide relief consistent with the
    AJ's decision, as stated in the Order below.
    
    ORDER
    
    The agency is ordered to take the following remedial action:
    
    1. The agency shall examine its leave records and solicit such
    additional information from complainant regarding leave usage as is
    necessary to determine the amount of sick and/or annual leave used as a
    result of the discrimination.  The agency shall thereafter restore that
    amount of sick and/or leave to complainant.  The agency shall complete
    these actions within sixty (60) calendar days. 
    
    2. Within 60 calendar days after this decision becomes final,
    the agency shall issue a check to complainant for $50,000.00 in payment
    for non-pecuniary compensatory damages and for $6,944.00 in pecuniary
    compensatory damages.
    
    3. Within 60 calendar days after this decision becomes final, the
    agency shall issue a check to complainant for $45,517.50 in payment for
    attorney's fees and for $786.39 in payment for costs. 
    
    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 back pay and other benefits due complainant,
    including evidence that the corrective action has been implemented.
    
    POSTING ORDER (G0900)
    
    The agency is ordered to post at its Dallas Region 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
    
    
    ___9/10/07_______________
    Date
    
    
    1 We note that the AJ appropriately mailed her decision to both OCR and
    the agency's designated representative.  
    ??
    
    ??
    
    ??
    
    ??
    
    2
    0720070050
    
    
    
    
    
    U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
    Office of Federal Operations
    P. O. Box 19848
    Washington, D.C.  20036
    
    
    
    6
    0720070050
    
    
    
    
    ====================
    Here is another claim that referenced Gay's claim and won:
    
    
    Veronica Washington v. Department of the Treasury
    05A50271
    11-15-05
    .
    
    
    
    Veronica Washington,
    Complainant,
    
    v.
    
    John W. Snow,
    Secretary,
    Department of the Treasury,
    Agency.
    
    Request No. 05A50271
    
    Appeal No. 07A40044
    Agency Nos. TD-98-3189, TD-99-3014 and TD-99-3077
    Hearing No. 100-A2-7333X
    
    GRANT
    
    Both Veronica Washington (complainant) and the Department of the Treasury
    (agency) timely requested that the Commission reconsider aspects of
    the decision in Veronica Washington v. Department of the Treasury, EEOC
    Appeal No. 07A40044 (October 26, 2004).  EEOC Regulations provide that
    the Commission may, in its discretion, grant a request to reconsider any
    previous Commission decision where the requesting party demonstrates 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.  See 29 C.F.R. § 1614.405(b).
    
    After reconsidering the previous decision and the entire record, the
    Commission finds that complainant's request meets the criteria of 29
    C.F.R. § 1614.405(b), and it is the decision of the Commission to grant
    the request in part.  Accordingly, the previous decision will be Modified
    as indicated below.  The agency's request is denied.
    
    ISSUES PRESENTED
    
    1.  Whether the previous decision erred by not finding that the agency's
    appeal was untimely.
    
    2.  Whether the previous decision erred by disallowing the EEOC
    Administrative Judge's award of compensatory damages.
    
    3.  Whether the previous decision erred by upholding the EEOC
    Administrative Judge's findings of no discrimination.
    
    4.  Whether the previous decision erred by upholding the EEOC
    Administrative Judge's determination that complainant was not entitled to
    attorney fees with regard to his determination that the agency committed
    a per se violation of the Commission's regulations.
    
    BACKGROUND
    
    In three complaints, complainant maintained that the agency discriminated
    against her because of her race (Black) and sex (female) and in reprisal
    for having engaged in previous EEO activity with regard to multiple
    performance evaluations of her work.  Following a four-day hearing, an
    EEOC Administrative Judge (AJ) found that: (1) the record supported the
    conclusion that complainant's supervisor did not discriminate against
    her as alleged; and (2) her supervisor's actions were motivated by her
    performance rather than her race, sex, or in retaliation for engaging
    in prior EEO activity.  According to the AJ, the agency articulated
    legitimate and nondiscriminatory reasons for complainant's poor ratings,
    i.e., her poor performance.  The agency cited such matters as her workload
    management, her use of incorrect auditing procedures, the fact that she
    misapplied tax law, her insufficient analyses, the matter in which she
    disposed of records, and her failure to identify certain issues.
    
    On his own motion, however, the AJ found that the agency committed a
    per se violation of the Commission's regulations because of a memorandum
    issued by complainant's supervisor that required complainant to notify
    him if she had EEO or union business away from her duty station.  The AJ
    found that the use of this memorandum constituted an unlawful interference
    with the EEO process because it “[h]as the effect of chilling ones right
    to unfettered and anonymous EEO counselor contact.”  As relief, the AJ
    provided complainant $1,000.00 in non-pecuniary compensatory damages
    and ordered two hours of EEO training for her supervisor.  The AJ,
    finding that complainant was not a prevailing party, refused to provide
    attorney's fees and costs.
    
    On appeal, complainant, among other things, sought a larger compensatory
    damage award and attorney's fees, argued that the findings of no
    discrimination were not supported by substantial evidence in the record,
    and maintained that she was prejudiced by the AJ's decision to, after
    four days of testimony, end the hearing.  The agency, among other things,
    argued that although it agreed with the majority of the AJ's decision,
    it disagreed with the per se discrimination finding.
    The previous decision affirmed the AJ's finding of a per se violation,
    and upheld his findings of no discrimination.  With regard to the AJ's
    decisions concerning the relief that complainant was entitled to, the
    previous decision found that the AJ erred in awarding compensatory damages
    because the supervisor's actions were not intentional and therefore
    compensatory damages were not warranted.  The previous decision did not
    alter the AJ's determination regarding attorney fees.
    
    In its request to reconsider the prior decision, the agency reiterated the
    same contentions that it raised on appeal, i.e., the AJ did not have the
    jurisdiction to consider the per se violation because it was not raised
    by complainant during counseling.  The agency also maintained that the
    ruling would have a  substantial impact on its official time procedures.
    Assuming that the Commission affirmed the per se violation, the agency
    requested that it reconsider the portions of the decision that directed
    it to consider discipline and that it post a notice that did not specify
    that the violation which took place was an unintentional per se violation.
    
    In complainant's request to reconsider, she argued that (1) the agency's
    appeal was filed in an untimely manner; (2) the AJ erred in not finding
    discrimination with regard to the evaluations that she received; (3)
    the previous decision erred in finding that she was not entitled to
    compensatory damages and in upholding the AJ's determination that she
    was not entitled to attorney fees.
    
    ANALYSIS
    
    The Commission finds that complainant's request for reconsideration does
    meet the regulatory criterion of 29 C.F.R. § 1614.405(b)(1).  Pursuant to
    29 C.F.R. § 1614.110(a), if an agency decides not to fully implement the
    decision of an administrative judge then it must first issue a final
    order and then simultaneously file an appeal with the Commission in
    accordance with 29 C.F.R. § 1614.402(a).  A copy of the appeal must be
    appended to the final order.  The Commission's Management Directive 110
    (EEO MD-110), November 9, 1999, provides that if the agency fails to
    issue a final order and file an appeal with the issuance of the order,
    the Administrative Judge's decision will be deemed ratified by the agency
    upon the expiration of the agency's 40-day period for accepting or not
    accepting the Administrative Judge's decision. EEO MD-110, 9-7, note 4.
    
    A review of the record indicates that the agency received the AJ's
    decision on October 27, 2003.  On December 4, 2003, the agency issued its
    final order indicating that it would not implement the AJ's decision.
    The agency also indicated that it would be filing an appeal with the
    Commission.  The Commission, we note, was not listed as a recipient of
    the agency's final order.  On December 18, 2003, the Commission received,
    by fax, a copy of the agency's December 4, 2003 final order, a copy of
    a Notice of Appeal form, dated December 6, 2003, two declarations from
    agency employees C-1 and C-2 and tracking documentation from Federal
    Express indicating that two packages were shipped from Washington,
    D.C. to Massachusetts on December 4 and delivered on December 5.
    
    In his declaration, C-1 indicated that, in his capacity as the agency's
    Assistant Director for Complaint Operations, he signed the agency's final
    order on December 4, but inadvertently wrote December 6th, 2003 on the
    Notice of Appeal form.  According to C-1, the entire package was mailed
    to complainant and her attorney on December 4, 2003, by Federal Express.
    C-1 also indicated that, the next day, its appeal was mailed to the
    Commission by regular mail.  C-2, the Out take Automation Assistant,
    corroborated the facts set forth in C-1's declaration.
    
    On January 14, 2004, the Commission received the agency's brief in
    an envelope that was postmarked December 17, 2003. Although the brief
    was dated December 17, 2003, the accompanying cover letter, also dated
    December 17, 2003, indicated that the brief was filed on December 4,
    2003.  Based on the record before us, we find that the agency filed its
    appeal in an untimely manner. The agency received the AJ's decision on
    October 27, 2003; therefore, its appeal should have been filed on or
    before Monday, December 8, 2003.<1>  Here, the agency's final order and
    Notice of Appeal were not filed with the Commission until December 18.
    We find no persuasive evidence that would establish that the agency
    filed an appeal with the Commission in accordance with 29 C.F.R. §
    1614.402 and 29 C.F.R. § 1614.110(a).  Since the agency's appeal was
    untimely, we find that it failed to take final action during the 40-day
    period set forth at 29 C.F.R. § 1614.110(a).  Accordingly, the AJ's
    decision became the final action of the agency on December 8, 2003.
    Gay v. Department of the Navy, EEOC Appeal No. 07A20089 (October 9,
    2003); McCue v. United States Postal Service, EEOC Appeal No. 01A13411
    (August 8, 2002).  Because the agency failed to take action during the
    mandated time period, it should not have been permitted to challenge
    any aspect of the AJ's decision.  Gay, supra.  Therefore, the previous
    decision erred in addressing the appropriateness of the amount awarded
    in compensatory damages.  Accordingly, the Commission will direct the
    agency to provide relief consistent with the AJ's decision.  Moreover,
    for the reasons stated above, we deny the agency's request to reconsider.
    
    With regard to complainant's contention that the previous decision
    erred by upholding the AJ's finding of no discrimination with regard to
    the evaluation of her performance, we find that she has not established
    that the previous decision involved a clearly erroneous interpretation of
    material fact or law.  We discern no basis for disturbing the AJ's finding
    of no discrimination as to these issues.  After a four day hearing,
    the AJ found that the record supported the conclusion that complainant's
    evaluations were based on her poor performance.  These findings of fact
    are supported by substantial evidence in the record.  The matters raised
    by complainant are expressions of her disagreement with the AJ's factual
    findings and credibility determinations.  Our regulations, however,
    require that the AJ's findings of fact be upheld if, like here, there
    is substantial evidence in the record to support said findings.
    
    Finally, with regard to complainant's contention that she was entitled
    to reimbursement for attorney's fees with regard to the finding of a
    per se violation of the Commission's regulations.  We find that she has
    not established that the previous decision involved a clearly erroneous
    interpretation of material fact or law.  By federal regulation, the agency
    is required to award attorney's fees for the successful processing of an
    EEO complaint that alleged discrimination under Title VII of the Civil
    Rights Act and the Rehabilitation Act.  EEOC Regulation 29 C.F.R. §
    1614.501(e)(1)(ii).  In order to obtain an award of attorney's fees, a
    complainant must be considered a prevailing party.  See Equal Employment
    Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
    Chapter 11.  In determining the degree of success, the Commission will
    consider all relief obtained in light of the complainant's goals, and,
    if a complainant achieved only limited success, s/he should recover
    fees that are reasonable in relation to the results obtained.  Hensley
    v. Eckerhart, 461 U.S. 424, 434 (1983).  Finally, the attorney requesting
    the fee award has the burden of proving, by specific evidence, his or
    her entitlement to the requested amount of attorney's fees and costs.
    Copeland v. Marshall, 641 F.2d 880, 892 (D.C. Cir. 1983).
    
    In the present case, we agree with the AJ that complainant should not
    be considered a prevailing party, for purposes of awarding attorney
    fees. The AJ's determination that complainant was not entitled to
    attorney fees was based on the fact that she did not prevail on any
    significant issue that she raised in her complaint.  Therefore, because
    she failed to receive any benefit in filing her complaint, the AJ found
    that she was not a prevailing party.  The AJ also took in account that
    the violation in this case was a technical violation of the Commission's
    regulations that did not dissuade complainant from seeking EEO counseling.
    Notwithstanding the claim of complainant's attorney that he developed the
    issue through cross-examination and alerted the AJ to the issue in his
    post-hearing memorandum, we find that, in light of complainant's goals
    and her level of success, she is not a prevailing party.  Like the AJ,
    we distinguish this situation from one where the per se violation was
    the primary focus of an employee's complaint, not, as in the present
    case, an argument raised by complainant after the hearing in order to
    demonstrate the alleged discriminatory animus of her supervisor when he
    issued her performance evaluations.
    
    CONCLUSION
    
    After reconsidering the previous decision and the entire record, the
    Commission will grant complainant's request.  The agency's request,
    however, is denied.  The decision in EEOC Appeal No. 07A40044, as
    Modified by this decision, remains the Commission's final decision.
    There is no further right of administrative appeal on the decision of
    the Commission on this request.
    
    ORDER (D0900)
    
    The agency is ordered to take the following remedial action:
    
    A. Within sixty (60) days of the date this decision becomes final,
    the agency shall provide complainant's supervisor with two hours of EEO
    training regarding the action found to be discriminatory herein.
    
    B.       The agency shall issue a check to complainant in the amount of
    $1000.00 in payment for  non-pecuniary compensatory damages
    
    C. The agency shall consider appropriate disciplinary action against
    the supervisor and report its decision.  If the agency decides to take
    disciplinary action, it shall identify the action taken.  If the agency
    decides not to take disciplinary action, it shall set forth the reason(s)
    for its decision not to impose discipline.  The Commission does not
    consider training to be a disciplinary action.
    D. 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, including
    evidence that the corrective action has been implemented.  Copies of
    all submissions to the Commission shall be served on complainant and
    her representative.
    
    POSTING ORDER (G0900)
    
    The agency is ordered to post at its Springfield, MA, 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.
    
                      COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
    
    This decision of the Commission is final, and there is no further right
    of administrative appeal from the Commission's decision.  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.
    
    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
    
    
    ____11-15-05______________
    Date
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    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 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 DISABILITY with respect to hiring, firing,
    promotion, compensation, or other terms, conditions or privilege of
    employment.
    
     The Department of the Treasury (Internal Revenue Service), Springfield,
     MA, supports and will comply with such Federal law and will not
     take action against individuals because they have exercised their
     rights under the law. The Commission found that the agency engaged in
     discrimination based on reprisal when it issued a memorandum regarding
     appointments with an EEO counselor, and it has remedied the employee
     affected by the Commission's finding of reprisal discrimination by
     ordering supervisory training and posting this notice. The Department
     of the Treasury (Internal Revenue Service), Springfield, MA, will
     ensure that officials responsible for personnel decisions and terms and
     conditions of employment will abide by the requirements of all federal
     equal employment laws and will not subject employees to discrimination
     in reprisal for prior EEO activity.
    
    The Department of the Treasury (Internal Revenue Service), Springfield,
    MA, 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 participated in proceedings pursuant to,
    Federal equal employment opportunity law.
    
    
                             _______________________________
    
    Date Posted: ____________________
    
    Posting Expires: ________________
    
    29 C.F.R. Part 1614
    
    
    
    
    1The 40th day was Saturday, December 6, 2003; therefore, the agency
    had until December 8, 2003 to file its appeal in a timely matter.
    29 C.F.R. § 1614.604(d).
    
    ======================
    Another claim that won and had referenced Gay vs. Navy
    
    
    
    
    Tracy L. Graham,
    Complainant,
    
    v. 
    
    John E. Potter,
    Postmaster General,
     United States Postal Service,
    Agency.
    
    Appeal No. 07200300641
    
    Agency No. 4F-913-1095-96
    Hearing No. 340-97-3703X
    
    DECISION
    
     
    On January 14, 2003, the United States Postal Service (agency) issued
    a final decision and filed an appeal from the decision of the EEOC
    Administrative Judge (AJ), issued October 21, 2002, in the above-entitled
    action.  The AJ found that the agency violated the Rehabilitation Act of
    1973, as amended, 29 U.S.C. § 791.  Upon review of the record and for
    the reasons that follow, we find that the agency's appeal was filed in
    an untimely manner and is dismissed.  29 C.F.R. § 1614.110(a); see 29
    C.F.R. § 1614.107(a)(2).    
    
    On February 14, 2003, complainant filed a limited appeal with respect
    to the AJ's denial of front pay and future benefits.  Complainant's
    appeal was timely filed (see 29 C.F.R. § 1614.402(a)) and is accepted in
    accordance with 29 C.F.R. § 1614.405.  Upon review of the record and for
    the reasons set out below, we find that the AJ did not err and affirm
    her determination that complainant was not entitled to further relief.
    
    ISSUES PRESENTED
    
    The issues presented in these appeals are: (a) whether the agency's
    appeal was filed in a timely manner; (b) whether the agency provided an
    adequate justification for extending the time limitation period to file
    an appeal; and (c) whether complainant established that the AJ erred by
    not granting complainant front pay and future benefits. 
        
    BACKGROUND
    
    Following hearings on liability in July and October 1998, the AJ issued
    an interim decision on April 27, 2001, finding in favor of complainant.
    Specifically, the AJ found that the agency discriminated against her based
    on disability when it did not safeguard the contents of her locker and
    when the agency, through the Postmaster (PM), engaged in a pattern of
    harassment that "created a hostile and offensive working environment,"
    and the PM "treated complainant disfavorably because she is disabled."
    AJ, pp. 2-3.  In October 2001, the AJ conducted a hearing on damages and
    issued a decision on October 21, 2002, awarding complainant back pay for
    the 13-month period she was on leave, compensatory damages, attorney's
    fees and costs, and reimbursement for the contents of her locker. 
    
    There is no dispute among the parties that the AJ's decision was mailed
    on October 21, 2002, and sent to both the agency's attorney (MN), who
    represented the agency during the hearing (and on appeal) at his address
    at the agency's legal department in San Francisco, California, and to the
    Manager, EEO Compliance & Appeals Processing Center, Pacific Area (MR),
    at her address in Daly City, California (EEO Office).  The record also
    shows that MN acknowledged to complainant's attorney that he received
    the AJ's decision within five days of service on October 26, 2002.  
    
    In its brief, the agency stated that, on Monday, December 2, 2002, MN
    contacted the EEO Office, asking if it was preparing a final decision for
    the instant matter; MN also sent a copy of the AJ's decision to the EEO
    office via facsimile.  RS, an EEO Compliance and Appeals Specialist in
    the EEO Office, provided a declaration stating that a copy of the record
    had not been received at the EEO office as of December 2, 2002, and he
    called the AJ, who stated that she "had previously boxed all the documents
    concerning this case and had sent the decision to the [EEO Office]."
    RS Declaration, pp 1-2.  On December 3, 2002, the EEO Office advised
    the AJ that it had not received her decision and the record, but that it
    would "attempt to reconstruct the file" and "establish (Friday) December
    6, 2002, as the date of receipt of [the] decision."2  Agency's Letter,
    December 3, 2002.  On December 5, 2002, the EEO Office received "a copy of
    [the AJ's] decision with all attachments, addressed to [the EEO Office].
    The box that contained the decision and attachments sent by [the AJ]
    appeared to have been damaged while in transit."3  RS Declaration, p. 2.
    On January 14, 2003, the agency issued a Notice of Final Action, rejecting
    the AJ's decision and simultaneously filing an appeal with the Commission.
    On February 5, 2003, the agency, represented by MN, filed a brief on
    behalf of the agency.  On appeal, the agency maintained that its appeal
    was filed timely, because it could not have prepared its final action
    and appeal until it received the AJ's decision, the investigative file,
    and the hearing record.  In her appeal, complainant contended that the
    agency's appeal was untimely, since MN, the agency's representative,
    received the AJ's decision on October 26, 2002, and that the appeal
    should have been filed no later than December 5, 2002.
    
    ANALYSIS AND FINDINGS
    
    Agency's Appeal 
    
    Pursuant to 29 C.F.R. § 1614.110(a), if an agency decides not to
    fully implement the decision of an AJ, it must issue a final order and
    simultaneously file an appeal with the Commission in accordance with 29
    C.F.R. § 1614.403.  A copy of the appeal must be appended to the final
    order.  The Commission's EEO Management Directive 110 (November 9, 1999)
    (EEO MD-110) explains that if the agency does not issue a final order and
    file an appeal simultaneously with the issuance of the order, the AJ's
    decision will be deemed ratified by the agency upon the expiration of the
    agency's 40-day period for accepting or not accepting the AJ's decision.
    EEO MD-110, § 9-7, note 4.  
    
    In the instant case, we find that the agency filed its appeal in
    an untimely manner.  In reaching this conclusion, we do not find it
    necessary to determine whether service on MN started the 40-day time
    limitation period.  Instead, we find it reasonable to conclude that the
    box containing the AJ's decision and other documents, mailed on October
    21, 2002, was already in the agency's possession prior to December 5,
    2002.  According to RS, the box that was received on December 5, 2002,
    at the EEO office, was addressed to MR.4  He did not indicate that there
    was a problem with the address, and, therefore, we have no reason to
    find that it was misdirected.  The only information provided by RS to
    explain why the box was not received at the EEO office within 5 days of
    its mailing was that it "appeared to have been damaged while in transit."
    The agency, however, did not describe this "damage," nor did it indicate
    how it may have played a role in delaying the proper delivery of the box.
    As noted above, the record established that the AJ did not mail anything
    to the EEO Office in response to the agency's inquiries after December 2,
    2002; thus, we must assume that the box had been with the agency at some
    location other than the EEO Office since October 2002.  We note in this
    regard that the EEO office did not indicate from whom it received the
    box.5  Without more information from the agency in regard to the box,
    its condition, postmark, and delivery to the EEO office, we must conclude
    that the agency provided inadequate justification for extending the
    40-day time limitation period for filing its appeal in this case.6     
    
    Because the agency's appeal was untimely and without justification
    for an extension of the time limitations period, we find that it
    failed to take final action during the 40-day period set forth in the
    Commission's regulations at 29 C.F.R. § 1614.110(a).  Accordingly, the
    AJ's decision became the final action of the agency on December 5, 2002.
    McCue v. United States Postal Service, EEOC Appeal No. 01A13411 (August
    8, 2002).7  Further, because the agency's failure to timely file its
    appeal constituted a failure to take action during the 40-day period, the
    agency cannot challenge any aspect of the AJ's decision.  McCue, supra.
    The Commission will not address the merits of the AJ's decision nor
    make a determination as to the appropriateness of the remedy provided.
    Accordingly, the agency's appeal is dismissed.  The Commission directs
    the agency to provide relief consistent with the AJ's decision, as set
    out in the Order below.
    
    Complainant's Appeal
    
    In her decision, the AJ found that, although complainant "suffered
    some residual emotional damage" as a result of PM's harassment, the
    preponderance of the evidence established that:
    
    most of her emotional distress had resolved upon her return in April 1997
    [after PM left the facility].  Furthermore, the passage of time between
    her return in 1997 and approximately July 2000, when she left employment,
    diminishes any connection between the treatment she suffered under [PM]
    and the events which 
    
    
    precipitated her exit in 2000.  In fact, I conclude that she did not
    provide sufficient evidence that any such nexus exists.8  
    
     AJ, p. 30.
    
    Thus, the AJ found that as of April 1997, upon her return to work,
    complainant's "emotional distress had resolved" and concluded that
    complainant was not entitled to relief for the period after her return.
    AJ, p. 30.  The AJ found, in addition, that the events occurring after
    April 1997, were unrelated to the agency's discriminatory harassment and
    that the reason for her retirement concerned "complainant's unhappiness
    over how a selection for window supervisor...had been handled and its
    effect on her job responsibilities, and not on her disability or [PM]."
    AJ, pp. 30-31. In regard to complainant's claim for $31,200.00, for
    future psychiatric treatment, the AJ denied this claim, noting that
    complainant's expert witness, Dr. Z, testified that there was no need for
    any formal type of treatment since, other than the stresses associated
    with her occupation, complainant was functioning reasonably well.  
    
    At the hearing in October 2001, complainant testified that, as of July
    2000, she could not continue working for the agency and decided to retire.
    See Hearing Transcript (HT) 639-688.  She explained that, as time went by,
    she began to feel the same anxiety, could not stop "clenching her teeth,"
    (HT 657) and her hair still fell out and turned gray (HT 664). Also,
    she said that she realized that although the PM had left the facility,
    "his legacy remained" (HT 681), and she could no longer come to work
    at the agency. Id.  Complainant contended that she was entitled to
    front pay and further back pay and compensatory damages for the entire
    period until the date that she would have been eligible to retire had
    she remained in the agency's employ.
    
    Front pay is a form of equitable relief that compensates an individual
    when reinstatement is not possible in certain very limited circumstances.
    In general, reinstatement is preferred to an award of front pay.
    Romeo v. Dept. of the Air Force, EEOC Appeal No. 01921636 (July 13,
    1992). Awards of front pay imply that the complainant is able to work
    but cannot do so because of circumstances external to the complainant.
    Goetze v. Department of the Navy, EEOC Appeal No. 01991530 (August 22,
    2001); Brinkley v. United States Postal Service, EEOC Request No. 05980429
    (August 12, 1999).  The Commission has identified three circumstances
    where front pay may be awarded in lieu of reinstatement, i.e., (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. York
    v. Department of the Navy, EEOC Appeal No. 01930435 (February 25, 1994);
    see also, Cook v. USPS, EEOC Appeal No. 01950027 (July 17, 1998); Tyler
    v. USPS, EEOC Request No. 05870340 (February 1, 1998). We find that
    none of these circumstances are present in this matter. 
    
    After a thorough review of the record, we find that the AJ's determination
    to deny further relief, including front pay, is supported by the evidence
    in the record. Complainant's claim for further relief is denied, and
    the AJ's decision regarding complainant's entitlement to additional
    relief is affirmed.  
    
    CONCLUSION
    
    Accordingly, the agency's final action is reversed.  The agency is
    directed to comply with the Order below.
    
    ORDER9 (D0900)
    
    The agency is ordered to take the following remedial action within sixty
    (60) calendar days of this decision becoming final:
    
    1.  The agency shall determine the appropriate amount of back pay, with
    interest, and other benefits due complainant, pursuant to 29 C.F.R. §
    1614.501, for the period March 15, 1996 through April 22, 1997, less
    amounts earned or earnable with reasonable diligence.  The complainant
    shall cooperate in the agency's efforts to compute the amount of back pay
    and benefits due, and shall provide all relevant information requested
    by the agency. If there is a dispute regarding the exact amount of back
    pay and/or benefits, the agency shall issue a check to the complainant
    for the undisputed amount within 60 calendar days of the date the
    agency determines the amount it believes to be due.  The complainant
    may petition for enforcement or clarification of the amount in dispute.
    The petition for clarification or enforcement must be filed with the
    Compliance Officer, at the address referenced in the statement entitled
    "Implementation of the Commission's Decision."
    
    2.  The agency shall pay complainant for $335.80, in payment for the
    items contained in her locker.
    
    3.  The agency shall pay complainant $10,321.98 in past pecuniary damages
    and $50,000.00 in non-pecuniary damages.
    
    4.  The agency shall pay complainant attorneys fees in the amount of
    $32,440.00; expert witness fees in the amount of $4,025.00; and costs
    in the amount of $817.07.  The agency shall pay complainant her costs
    in the amount of 687.00.    
    
    5.  The agency shall provide eight hours of EEO training to the
    Postmaster, complainant's supervisor, and other managers at the facility
    during the discriminatory time period. This training should educate
    supervisors and manager of their duties and obligations under Section
    501 of the Rehabilitation Act of 1973. The Commission does not consider
    training to be a disciplinary action.
    
    6.  The agency shall consider taking disciplinary action against the
    Postmaster and report its decision to the Commission.  If the agency
    decides to take disciplinary action, it shall identify the action taken.
    If the agency decides not to take disciplinary action, it shall set
    forth the reason(s) for its decision not to impose discipline. 
    
    7.  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 back pay and other benefits due complainant,
    including evidence that the corrective action has been implemented. The
    agency shall copy the report and its supporting documentation to the
    complainant and her counsel.
    
    POSTING ORDER (G0900)
    
    The agency is ordered to post at its Northridge (CA) facility and
    satellite facilities 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)
    
    For the period that complainant was represented by an attorney (as
    defined by 29 C.F.R. § 1614.501(e)(1)(iii), she is entitled to an award of
    reasonable attorney's fees incurred in the processing of the complaint.
    29 C.F.R. § 1614.501(e).  The award of attorney's fees shall be paid
    by the agency. The attorney shall submit a verified statement of fees
    to the agency -- not to the Equal Employment Opportunity Commission,
    Office of Federal Operations -- within thirty (30) calendar days of this
    decision becoming final.  The agency shall then process the claim for
    attorney's fees in accordance with 29 C.F.R. § 1614.501. 
    
    
    
    
    IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
    
    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 (M0408)
    
    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 (R0408)
    
    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 (Z0408)
    
    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
    
    
    ___08/14/2008_______________
    Date
    1 Due to a new data system, this case has been redesignated with the
    above-referenced appeal number.
    2 There is no explanation why, on December 3, 2002, the agency designated
    December 6, 2002, as the date it received the AJ's decision, since,
    as noted above, NM provided a copy of the decision, by fax, to the EEO
    office on December 2, 2002, nor is it clear why the agency   did not
    alter this date once it received the record sent by the AJ.  We note,
    however, that the agency issued its final action and appeal within 40
    days of December 5, 2002.
    
    3 RS's declaration does not provide any information about the box, such as
    the postmark date, a description of the damage, or a picture of the box.
    Complainant's attorney submitted a declaration stating that, when she
    asked NM to examine the box and postmark, NM stated that she could not
    do so, since discovery had closed.  We conclude, however, that the box
    was not mailed to the EEO Office pursuant to RS's December 2 telephone
    call to the AJ, because RS "was advised that neither the AJ nor the Los
    Angeles District Office of the EEOC had retained any records pertaining
    to this complaint."  Agency's Appeal Brief, p. 2.  
    
    4 We note that, had the agency immediately filed a notice of appeal with
    the Commission upon the alleged receipt of the box on December 5, 2002,
    that appeal would have been timely filed.  Although the agency may not
    have decided whether it wished to appeal the AJ's decision, the agency
    would have preserved the appeal.  Thereafter, it could have withdrawn
    its appeal if it so desired.   
    5 We find it extremely unlikely that it was only by mere coincidence
    that the box, which was mailed in October, simply arrived at the EEO
    office on December 5, 2002.  The more likely scenario is that MR and RS
    made inquiries that resulted in the box being located and delivered to
    the EEO Office.  
    
    6 In addition, we note that the agency's brief, dated February 5, 2003,
    was filed two days beyond its due date.  Having filed its appeal on
    January 14, 2003, the agency's brief was due within 20 days, or on or
    before February 3, 2003.  See 29 C.F.R. § 1614.110(a). Although the
    Commission has considered the contents of its brief in this decision, had
    we decided not to accept the brief, the agency is without an explanation
    for its untimely appeal.
    
    7 See also Gay v. Department of Navy, EEOC Appeal No. 07A20089 (October 9,
    2003).
    8 The AJ noted complainant's testimony that she respected her new
    supervisor who "[l]et me come in there and develop an opinion based
    on me."  See AJ, p. 30.
    9 This Order includes all relief to which complainant is entitled pursuant
    to the AJ's decision.  See AJ, pp. 44-45.
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    U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
    Office of Federal Operations
    P. O. Box 19848
    Washington, D.C.  20036
    
    
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