0120081612
08-31-2012
Agatha Tsosie, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior (Bureau of Indian Affairs), Agency.
Agatha Tsosie,
Complainant,
v.
Ken L. Salazar,
Secretary,
Department of the Interior
(Bureau of Indian Affairs),
Agency.
Appeal No. 0120081612
Agency No. BIA-0505-54
DECISION
Complainant timely filed an appeal from the Agency's final decision concerning her equal employment opportunity (EEO) complaint alleging 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission REVERSES the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Assistant Director, GS-15, at the Agency's Office of Law Enforcement Services (OLES), Central Office West, in Albuquerque, New Mexico. Beginning in 2001, Complainant and other female employees reportedly began to experience degrading and disparaging comments and job termination threats from the Associate Director of Operations (ADO). The ADO was one management official who supervised Complainant and other female employees. These female employees were also reportedly treated differently than male colleagues, often excluded from meetings and memoranda by the ADO. On November 16, 2005, the Agency issued Complainant notice that her position would be abolished through a Reduction-in-Force (RIF). The RIF notice advised Complainant that she would be separated from federal service, effective January 16, 2006, due to a new organizational structure.
On July 21, 2005, Complainant filed an EEO complaint, amended on December 2, 2005, alleging that the Agency subjected her to hostile work environment harassment and discrimination, culminating in a constructive discharge, on the bases of national origin (Native American), sex (female), age (52), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1) on May 4, 2005, she was informed that her position was eliminated as reflected in the new Organizational Chart dated April 25, 2005, approved by the Director of the Agency;
2) there was a new position created, at this time, for one of her coworkers that included most of the duties that she was currently performing;
3) at the time it was made known that her position was going to be abolished, the Agency continued to recruit and fill vacant positions, without any consideration for placing her in any of the positions;
4) she was intentionally left out of meetings and discussions;
5) on July 15, 2005, her supervisor denied her request to allow one of her subordinates to attend a training session titled, "Understanding Budget Information;"1
6) there were no efforts to place her in any vacant positions on the Organization Chart dated September 12, 2005; and
7) the Associate Director of Operations (ADO) was referring to her when he said, "We have disruptive employees here and we need to get rid of them."
At the conclusion of the investigation, on August 2, 2006, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). The AJ thereafter dismissed Complainant's hearing request and remanded the matter to the Agency for processing as a mixed case. On August 9, 2007, the Agency issued a Final Agency Decision (FAD). Complainant subsequently appealed the matter to Merit Systems Protection Board (MSPB). On August 31, 2007, the MSPB retained jurisdiction over Complainant's RIF/constructive discharge claims, but remanded Complainant's retaliatory and gender hostile work environment claims to the Agency for processing as a non-mixed complaint. The Agency subsequently issued its second FAD on January 8, 2008.2 The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
Specifically, with respect to hostile work environment harassment, the Agency found that Complainant failed to establish a prima facie case of discrimination based on her protected groups. The Agency further found that it articulated legitimate, nondiscriminatory reasons for its actions, which Complainant failed to establish were pretext for discrimination.
The instant appeal followed.
CONTENTIONS ON APPEAL
On Appeal, Complainant, through her attorney, contends that the ADO created a hostile work environment based on her sex/gender and in reprisal for her prior protected EEO activity by:
1) getting unjustifiably angry with her;
2) disparaging her to other employees;
3) excluding her from management meetings and memoranda;
4) taking her position off the organizational chart of April 25, 2005; and
5) saying that her job was in jeopardy.
Complainant contends that the ADO was referring to her when he allegedly said, "We have disruptive employees here and we need to get rid of them." Complainant contends that the MSPB testimony of the former Budget Officer confirms the ADO's sexiest attitude towards her. Complainant cites to the Budget Officer's MSPB testimony:
[The ADO] did not like Complainant. He did not like [Complainant] because she was at the same grade level as he was. . . . He was a GS-14. And she was a 15. . . . And from the time she first came to law enforcement until she left, he was very angry that she was even there.
MSPB Hr'g Tr., at 152.
Complainant further citing to the Budget Officer's testimony contends that the ADO treated her differently than her male colleagues:
There were several occasions when we came to these district commander meetings when the women sat around the wall while the men sat around the table. I found that kind of insulting . . . .
Id. at 155-56.
Complainant contends that the ADO would exhibit rage and anger towards her on multiple occasions. Complainant contends that the former Deputy Bureau Director witnessed the ADO's anger towards her. Complainant cites to the MSPB testimony of the former Deputy Bureau Director:
Right away [the ADO] flew off the handle. And he started to practically scream. "I know it was [Complainant] who did this. You don't have to tell me that it was [Complainant] who did this." And he went off for some time . . . .
Id. at 154.
Complainant contends the Budget Officer witnessed the ADO degrade her and threaten her job. The Budget Officer testified that the ADO said about Complainant, "But this bitch is not going to tell me what to do for very much longer." Id. at 154-55. Complainant contends that the Budget Officer's testimony shows that the ADO would treat her and other women in a demeaning way:
[The ADO] was always really pleasant with the men when they were together, joking, laughing, but he was very cold with the women when they'd come around. There would never be the same kind of treatment, never a "hello, how are you?" He'd ignore women when they came into the room.
Id. at 155.
Complainant contends that she heard from other employees that the ADO had made disparaging remarks about her, telling employees that she was incompetent and did not know what she was doing. Complainant cites to the testimony of the Budget Officer:
[The ADO] was very upset with the . . . women staff, and he said, From now on you women are not here to tell us what to do. You're here so when we tell you what to do you just do it. Working with you is like working with the Taliban, and [Complainant] is the head of the Taliban . . . .
Id. at 153.
Complainant contends the ADO created an atmosphere of distrust and distain for her, constantly telling employees that she was incompetent. Complainant cites to the testimony of the Special Agent who testified that the ADO would make comments that she was incompetent. Id. at 171-73. Complainant contends that the ADO would constantly threaten to get rid of her by saying that her job was in jeopardy. Complainant cites to the testimony of another employee who indicated that the ADO would say that Complainant's job was at risk. This employee testified that the ADO said that "[Complainant] is vastly overrated and she should have never been hired." Complainant's Ex. 10, at 2. Complainant cites to the testimony of a former criminal investigator:
A: Specifically, I recall one meeting, it was directly after a meeting that we had with [Complainant] in her office, upon return to our office, he specifically referred to [Complainant] as a "stupid bitch" and a "complete waste of air," I believe that was his exact quote.
Q: And he was referring directly to [Complainant]?
A: Yes, ma'am.
Q: Now did [the ADO] ever use the term "idiot" to describe anybody we're talking about here?
A: Yes, ma'am, He would frequently use the term "idiot," "incompetent," "those women," which I took as the women who worked for [Complainant]. He would make statements that those women have no idea what they're doing, so forth and so on. It was a common occurrence.
MSPB Hr'g Tr. at 163-65.
Complainant additionally contends that the ADO excluded her from management meetings and from important memoranda. Complainant cites to the testimony of the Budget Officer:
Q: Could you speak to the allegation that Complainant . . . was being intentionally left out of meetings and discussions . . .?
A: Yes, on several occasions they would have conference calls with the district commanders and [Complainant] was not allowed to be on any of those conversations. She used to attend several meetings involving law enforcement, and I remember one time . . . she was going to go to one of those meetings and she was called on the phone by the ADO and he told her no way was she supposed to go to those meetings to represent Law Enforcement.
Report of Investigation (ROI), at 258-59.3
Complainant further contends that the ADO was responsible for the organizational chart of April 25, 2005, that purported to eliminate her position from the Agency. Complainant contends that this chart did not actually abolish her position, but the ADO made the chart to make her believe that she would be released from employment. Complainant cites to the testimony of a female coworker, "In March of 2005, [the ADO] casually walked into my office and told me that they were going to abolish me, [another female employee], and [Complainant] from the organization chart." MSPB Hr'g Tr., at 124. Complainant contends that the ADO then subsequently stated that there would be no RIFs even though all along he intended to abolish her position.
Complainant contends that the ADO exhibited discriminatory animus towards her and other women. Complainant indicates that the Assistant Deputy Bureau Director testified that the ADO said women are "sexual tools," and uses the word "whore." Complainant's Ex. 13, at 50. Complainant also cites to the testimony of a criminal investigator who testified, "I often heard the ADO make disparaging remarks about women that were of a sexual nature." Complainant's Ex. 22, at 1.
Complainant further contends that the ADO exhibited discriminatory animus towards her protected EEO activity. Complainant cites to the testimony of an employee:
Q: Did [the ADO] ever convey to you any opinions that he has about people who follow the EEO process?
A: During my service directly under the ADO . . . he had stated that he felt that the EEO process was a joke. That he has had numerous EEO complaints filed against him over the years. That his way of dealing with those complaints filed against him was simple, to ignore them and they would eventually go away.
Q: And did he convey to you what he viewed people who followed the EEO process as?
A: Yes. During a variety of statements, he clearly conveyed to me that he felt that people or employees who did use the EEO system were troublemakers, and he didn't hold much regard for them.
MSPB Hr'g Tr.at 154.
Complainant contends that on June 17, 2005, two days after she contacted the EEO Counselor the ADO called Complainant into a meeting and stood over her while he spoke. Complainant contends that the ADO said that the new director had the impression that she and another female employee were angry. Complainant contends that the ADO's behavior was in retaliation for contacting an EEO counselor and filing an informal complaint. Complainant cites to the testimony of another employee, "[I]t was common knowledge that [the ADO] didn't approve of people filing EEO complaints. It was rumored around the office that he was going to get rid of the disruptive people if they didn't agree with what he had to do." Id. at 228. Complainant contends that the ADO viewed her as one of those disruptive people.
Complainant therefore contends that the Agency subjected her to hostile work environment harassment based on her sex/gender and in reprisal for her protected EEO activity.4
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, � VI.A. (Nov. 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
Notice to Show Good Cause
When the instant appeal was filed, the Commission notified the Agency by letter dated February 26, 2008, that it must provide the EEOC with the complete record pertaining to the complaint at hand within 30 calendar days of notification of this appeal. See 29 C.F.R.
� 1614.403. However, the Agency did not comply with this request. By e-mail communications dated February 6, 2012, and March 7, 2012, we advised the Agency that the ROI still had not been received, and requested the Agency to provide a copy of the ROI. Although the Agency has acknowledged these requests, and represented that efforts to provide the ROI were underway, to date we have not received the ROI.
Based on the Agency's failure to provide the requested ROI, on July 3, 2012, the Commission issued a "Notice to Show Good Cause Why Sanctions Should Not Be Imposed" (Notice to Show Cause). The Notice to Show Cause ordered the Agency to submit the complete file, including the ROI, or provide good cause why it could not, through evidence and argument, within (20) calendar days. To date, the Agency has not responded to the Notice to Show Cause. The consequences of the Agency's failure to respond to the Notice are discussed below.
Hostile Work Environment / Harassment
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinnev v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9 (Mar. 8, 1994). A single incident or group of isolated incidents will not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, 510 U.S. 17 (1993).
To establish a claim of hostile environment harassment, Complainant must show that: (1) she is a member of a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
The Commission has held that an Agency should not ignore the pattern aspect of a complainant's claims and define the issues in a piecemeal manner where an analogous theme unites the matters contained therein. Garg v. U.S. Postal Serv., EEOC Appeal No. 0120102581 (Sep. 10, 2010) (quoting Meaney v. Dep't of the Treasury, EEOC Request No. 05940169 (Nov. 3, 1994))
In the context of supervisory liability, employers are subject to vicarious liability for unlawful harassment by supervisors. Farragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Industries v. Ellerth, 524 U.S. 742 (1998). The standard of liability set forth in these decisions is premised on two principles: (1) an employer is responsible for the acts of its supervisors, and (2) employers should be encouraged to avoid or limit the harm from harassment. In order to accommodate these principles, the Court held that an employer is always liable for a supervisor's harassment if it culminates in a tangible employment action.
In the instant case, we take judicial notice that on February 7, 2008, after a hearing, an MSPB Administrative Judge (AJ) issued a decision, finding that the Agency failed to establish that its elimination of Complainant's position through a RIF was supported by legitimate reasons. See Trujillo v. Dep't of the Army, EEOC Appeal No. 0120102156 (May 10, 2012) (affirming an EEOC AJ's decision taking judicial notice an MSPB AJ's decision); Jones v. Dep't of the Air force, EEOC Appeal No. 07A10033 (June 28, 2001) (the Commission taking judicial notice of an MSPB AJ's decision), req. for recon. granted in part, EEOC Request No 05A10979 (Nov. 14, 2001) (granting request in part on unrelated grounds). Therein, the MSPB AJ found that the Agency's abolishment of Complainant's position was based on gender discrimination. The MSPB AJ found that Agency intentionally discriminated against Complainant when the ADO abolished Complainant's position.5 We further take judicial notice that the MSPB hearing transcript and other testimony that Complainant presents on appeal clearly establishes that ADO's actions against her were based on her sex/gender and in reprisal for her protected EEO activity. The evidence Complainant presents on appeal further establishes that Complainant was subjected to an objectively hostile and abusive work environment, which was sufficiently severe and pervasive to alter the conditions of her employment. See Harris, 510 U.S. at 17, 21. The evidence Complainant presents on appeal additionally establishes that the ADO was responsible for the abolishment of Complainant's position.
As noted above, the Agency has failed to respond to the Notice to Show Good Cause and provide the Commission with a copy of the missing ROI. Based on the conduct of the Agency in this case, we find that the imposition of sanctions is warranted. The Commission repeatedly requested the complete complaint file from the Agency. The Agency was on notice that sanctions were possible if the Agency failed to comply. Therefore, we exercise our discretion to sanction the Agency for its noncompliance, drawing an adverse inference that the requested comparative evidence would have reflected unfavorably on the Agency.
Sanctions serve a dual purpose. On the one hand, they aim to deter the underlying conduct of the non-complying party and prevent similar misconduct in the future. Barbour v. U. S. Postal Serv., EEOC 07A30133 (June 16, 2005). On the other hand, they are corrective and provide equitable remedies to the opposing party. Given these dual purposes, sanctions must be tailored to each situation by applying the least severe sanction necessary to respond to a party's failure to show good cause for its actions and to equitably remedy the opposing party. Royal v. Dep't of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009); Gray v. Dep't of Defense, EEOC Appeal No. 07A50030 (Mar. 1, 2007); Hale v. Dep't of Justice, EEOC Appeal No. 01A03341 (Dec 8, 2000). Several factors are considered in "tailoring" a sanction and determining if a particular sanction is warranted: (1) the extent and nature of the non-compliance, and the justification presented by the non-complying party; (2) the prejudicial effect of the non-compliance on the opposing party; (3) the consequences resulting from the delay in justice; and (4) the effect on the integrity of the EEO process. Roval v. Dep't of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009); Gray v. Dep't of Defense, EEOC Appeal No. 07A50030 (Mar. 1, 2007).
In this case, we find that the appropriate sanction is to draw an adverse inference from the Agency's failure to produce the ROI. We, therefore, find that if the ROI had been provided, it would have established that the Agency's actions towards Complainant were based on her sex and in reprisal for her protected EEO activity. We also find that had the ROI been provided, it would have established that Complainant was subjected to an objectively hostile and abusive work environment, which was sufficiently severe and pervasive to alter the conditions of her employment. There is no dispute that Complainant's position was abolished through a RIF. Thus, we find that the ADO's harassment culminated in a tangible employment action, therefore making the Agency vicariously liable for the ADO's actions.
We find that drawing such an adverse inference against the Agency taken together with Complainant's evidence presented on appeal is sufficient to establish that the Agency subjected Complainant to hostile work harassment based on her sex and in reprisal for her prior protected EEO activity.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision. The matter is REMANDED to the Agency for further processing in accordance with this decision and the Order of the Commission, below.
ORDER
Within sixty (60) calendar days of the date this decision becomes final, the Agency is ORDERED to take the following remedial actions:
1. Within fifteen (15) calendar days of the date this decision becomes final, the Agency shall give complainant a notice of her right to submit objective evidence (pursuant to the guidance given in Carle v. Dep't. of the Navy, EEOC Appeal No. 01922369 (January 5, 1993)) in support of any claim she may have for compensatory damages. Complainant shall be provided with forty-five (45) calendar days from the date she receives the Agency's notice to submit her evidence. The Agency shall complete any additional investigation of the claim for compensatory damages within forty-five (45) calendar days of the date the Agency receives Complainant's claim/evidence of compensatory damages. Thereafter, the Agency shall process the claim in accordance with 29 C.F.R. � 1614.110.
2. The Agency is directed to conduct training for the individual referred to as the ADO in this decision. The Agency shall address this employee's responsibilities with respect to eliminating harassment in the workplace.
3. The Agency shall consider taking appropriate disciplinary action against the individual referred to as the ADO in this decision. The Commission does not consider training to be disciplinary action. 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.
4. The Agency shall pay attorney's fees in accordance with the paragraph below.
5. The Agency shall post a notice in accordance with the paragraph below.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented.
POSTING ORDER (G0610)
The Agency is ordered to post at its Office of Law Enforcement Services (OLES), Central Office West, in Albuquerque, New Mexico 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 (H0610)
If Complainant has been 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 (K0610)
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 77960, Washington, DC 20013. 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 (M0610)
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), at 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 77960, Washington, DC 20013. 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 (R0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
August 31, 2012
Date
1 The Agency dismissed this claim pursuant to pursuant to 29 C.F.R. 1614.107(a)(1).
.
2 We note that, on remand, the Agency issued its second FAD without first giving Complainant notice of her right to a hearing. The Agency therefore improperly denied Complainant access to a hearing pursuant to 29 C.F.R. � 1614.108(f). However, in view of our finding of discrimination, the Agency's inaction constitutes harmless error.
3 The record does not contain a copy of the Report of Investigation, as discussed below.
4 We note that Complainant's appeal focused exclusively on her claim that the Agency subjected her to hostile work environment harassment based on sex/gender and reprisal. Complainant initially alleged other bases in her complaint, but on appeal she specifically indicated that she was challenging the Agency's decision on the two bases listed here.
5 The MSPB AJ ordered the Agency to cancel Complainant's separation and retroactively restore Complainant to her position with back pay and any other benefits entitled to her.
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0120081612
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120081612