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March 26, 1992

PAULINE LEE, Plaintiff,
LOUIS SULLIVAN, Secretary, Department of Health and Human Services, Defendant.


The opinion of the court was delivered by: WAYNE D. BRAZIL

On January 21, 1992, this court entered a tentative order specifying the claims plaintiff may pursue in this action and the relief to which plaintiff is entitled if she prevails. We invited the parties to file briefs by February 6, 1992 contesting any matter addressed in the order. The tentative order was to have become final on that date with respect to all matters that the parties did not so contest. On February 6, 1992, plaintiff filed a response to the tentative order contesting our finding that plaintiff's administrative complaint number FSA 418-88 is not properly before us and should be dismissed. On February 12, 1992, defendant filed an opposition to plaintiff's response to the tentative order.

 On February 14, 1992, this court entered an additional order, on that occasion inviting the parties to submit briefs by February 28, 1992, on the issue of whether the Civil Rights Act of 1991 should be applied retroactively to this case. Both parties submitted briefs on the issue on February 28, 1992.

 Having considered the parties' written submissions as well as the record herein, the court hereby ORDERS the following:

 1. A status conference shall be held by telephone conference call on Wednesday, May 6, 1992 at 2:00 p.m. Counsel for defendant shall be responsible for arranging the conference and placing the call to chambers at (415) 556-2696.

 2. For the reasons described in the opinion below, the tentative order issued on January 21, 1992 is hereby MODIFIED so that (a) plaintiff is not precluded from seeking relief for the DHHS' denial of her within grade increase in June, 1985 and for DHHS' removal of her from her position in June, 1985 on the grounds that these actions were the result of handicap discrimination and (b) plaintiff is not precluded from seeking compensatory damages under Section 201 of the 1991 Civil Rights Act. As so modified, the tentative order is now made final.

 3. By April 17, 1992, plaintiff shall file an amended complaint if she wishes to seek compensatory damages. If plaintiff so files an amended complaint, defendant shall file an amended answer by April 29, 1992. May 6, 1992 shall be the deadline for demanding a jury trial.

 I. Administrative Complaint FSA 418-88

 Administrative complaint number FSA-418-88 was brought by plaintiff on June 24, 1988 pursuant to regulations promulgated by the Equal Employment Opportunity Commission ("EEOC") (29 C.F.R. Part 1613). (Declaration of Harriette Treloar filed in this action on February 15, 1991 ("Treloar declaration") P20.) In the complaint, plaintiff asserted that each of the three following actions were products of handicap discrimination and reprisal against plaintiff for her prior EEO activity:

 (a) DHHS' denial of plaintiff's within grade increase in June, 1985,

 (b) DHHS' removal of plaintiff from her position on June 21, 1985, *fn1" and

 (c) DHHS' decision to simply rescind these two acts in October, allegedly without providing plaintiff adequate relief for the harm in which these two acts resulted.

 (Treloar decl. P20; Ex. 9 to Treloar decl.; Exs. 1, 6 to plaintiff's response to tentative order ("plaintiff's response").) *fn2" Because the procedural history of the administrative actions surrounding this complaint is complicated, we briefly summarize it below for reference. Where relevant, the details of these various administrative actions will be discussed in our opinion, but we find it useful to set out a "roadmap" of the various events. 07/07/85 Plaintiff appeals to the MSPB the 1985 DHHS employment actions. (Treloar decl. P17.) 08/17/87 Plaintiff refiles her MSPB appeals for a final time after having received a number of extensions due to ill health. In these appeals, plaintiff alleges handicap discrimination, age discrimination, and reprisal. (Treloar decl. P17, Exs. 2, 3 to plaintiff's response.) 10/87 DHHS rescinds the 1985 DHHS employment actions. (Treloar decl. P17.) 11/13/87 In an initial decision, the MSPB dismisses plaintiff's appeals as moot. (Ex. 6 to Treloar decl.) 04/14/88 MSPB finalizes its decision dismissing plaintiff's appeals as moot. The MSPB notifies plaintiff that she may seek review of its decision before the Court of Appeals for the Federal Circuit. (Ex. 4 to plaintiff's response.) 05/16/88 Plaintiff seeks counseling with an EEOC counselor on the issues subsequently raised in FSA-418-88. (According to counsel for defendant in defendant's 2/17/92 opposition brief, page 3, lines 7-14.) 06/24/88 Plaintiff files EEO complaint number FSA-418-88 with the DHHS. (Treloar decl. P20.) 08/25/88 The DHHS rejects plaintiff's complaint pursuant to 29 C.F.R. § 1613.405(a). (Ex. 1 to plaintiff's response.) 01/24/89 Following plaintiff's appeal of the DHHS rejection to the EEOC/ORA, the EEOC/ORA dismisses the appeal pursuant to 29 C.F.R. § 1613.405(a) but informs plaintiff that, once the MSPB issues a final decision, she may seek review by the EEOC/ORA of "issues of prohibited discrimination that the MSPB considered in reaching its decision." (Ex. 5 to plaintiff's response.) (Apparently, the ...

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