0720080008
11-05-2009
Carol Marshall, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, (Federal Bureau of Investigation), Agency.
Carol Marshall,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
(Federal Bureau of Investigation),
Agency.
Appeal No. 0720080008
Hearing No. 230-2006-00008X
Agency No. F055926
DECISION
Following its November 6, 2007 final order, the agency filed a timely
appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405(a).
On appeal, the agency requests that the Commission affirm its modification
of an EEOC Administrative Judge's (AJ) finding of retaliation in
violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. � 2000e et seq. The agency also requests that the
Commission affirm its rejection of some of the relief ordered by the AJ.
Complainant also filed a cross-appeal, requesting that the Commission
increase the award of compensatory damages. For the following reasons,
the Commission MODIFIES the agency's final order.
ISSUES PRESENTED
(1) Whether substantial evidence in the record supports the AJ's finding
that the agency failed to show that, even without the retaliation,
the agency still would have terminated complainant on July 16, 2004.
(2) Whether the AJ's awards of remedies are supported by the record.
BACKGROUND
Complainant, a former Victim Specialist with the Detroit Field Office
(DFO), Traverse City Residence Agency (TCRA), filed a formal complaint
on October 8, 2004, alleging that she was discriminated against on the
bases of sex (female) and reprisal for prior protected EEO activity
[under Title VII] when:
(1) she was subjected to discriminatory terms and conditions of
employment during her probationary period; and
(2) on July 16, 2004, she was terminated from employment with the
FBI as a Victim Specialist, for unacceptable performance, during her
probationary period.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing and the AJ held a hearing on January 24 - 25, March
14 - 16, and July 12 - 13, 2007, and issued a decision on September 26,
2007.
AJ Decision
The AJ found that complainant failed to establish discrimination on any
basis as to issue (1). With regard to issue (2), the AJ also found no
evidence of sex discrimination when she was terminated. However, the
AJ found that complainant was subjected to unlawful retaliation for her
EEO activities when she was terminated. Specifically, the AJ found that
even assuming complainant had performance problems and/or unprofessional
conduct as the agency contends, that was not the reason that she was
terminated on the date in question. The AJ found the following:
On or about June 16, 2004, [the Supervisory Senior Resident Agent (S1)]
intercepted an email between complainant and [another Agent (A1)],
concerning [A1's] EEO complaint, in which the complainant counseled
and encouraged [A1]. During this period [A1] became aware that the
complainant was named as a witness in [A1's] EEO investigation.
[S1 and Supervisory Special Agent (S2)] were surprised that the
complainant, who promised not to take sides, was indeed assisting and
encouraging [A1]. The complainant further surprised [S1 and S2] and
complicated her employment status when she offered to be a witness for
[A1] on or about July 14, 2004, [in the] EEO investigation against
[S1]. [S1 and S2] considered this last act as a personal betrayal of
trust against them.
As a result the plan to terminate the complainant went into effect.
The termination plan finally materialized immediately [after] the
complainant concluded her testimony on July 14, 2004.
AJ Decision at 58. The AJ found, therefore, that complainant's
termination was motivated by reprisal for her protected EEO activity.
In a separate decision on damages issued on July 13, 2007, the AJ ordered
remedies, including (1) complainant's reinstatement to her position
as a Victim Specialist; (2) back pay and benefits; (3) pecuniary and
non-pecuniary compensatory damages; (4) attorney's fees and costs; and
(5) "sensitivity" training for the responsible management officials.
Final Order
The agency subsequently issued a final order accepting the AJ's
decision that the agency did not discriminate against complainant
based on her sex, and accepting the AJ's decision that the agency
retaliated against complainant for her participation in protected
EEO activities when it terminated her from her position as a Victim
Specialist during her probationary employment. However, the final order
determined that substantial evidence showed that the agency would have
terminated complainant from her employment even had it not considered
complainant's participation in EEO activities. That is, the final order
deemed this case to be a mixed-motive case. Accordingly, the final order
found that that complainant is entitled to declaratory and some types of
injunctive relief, but not an award of damages, reinstatement, or backpay.
In addition, the agency challenged the amount of attorney's fees that
was awarded as well as the order that agency officials attend training.
The final order determined that the agency should post, for 30 days,
a notice of the finding of retaliation in this case.1
CONTENTIONS ON APPEAL
On appeal, the agency again notes that it has accepted the AJ's
decision that it retaliated against complainant for her participation
in protected EEO activity when it terminated her employment as a Victim
Specialist on July 16, 2004. It disputes however, the AJ's order of
reinstatement and back pay and benefits lost, noting that the agency
successfully proved, by clear and convincing evidence, that it would
nevertheless have terminated complainant, even absent consideration of
her protected EEO activity. The agency contends that the overwhelming
documentary and testimonial evidence presented at hearing, clearly
established that complainant had manifested a pattern of behavior and
serious conduct indicating her unwillingness to be a team player and
her disregard for the FBI's supervisory chain of command. The agency
asserts that in fact, the evidence clearly shows that complainant's
poor attitude and hostility toward supervisory direction was readily
apparent from the outset of her employment and was a cause of concern
for FBI management as it pertained to complainant's suitability for
further employment with the agency. Additionally, the agency states that
the record evidence clearly established that as early as March - April
2004, FBI management officials were engaged in discussions pertaining
to the process required for recommending complainant's termination.
The agency then offered examples that it deems to be supportive of the
agency's stated legitimate, nondiscriminatory reasons for terminating
complainant's probationary employment.
In response, complainant contends that the clear and convincing
evidence standard demands evidence of a kind and degree greater than
that produced by the agency. Complainant notes that in asserting
that she would nevertheless have been terminated, the agency relies
substantially upon the testimony of the responsible management official
whose testimony the AJ found lacking in credibility, after having the
opportunity to observe his demeanor and tone of voice at the hearing.
Complainant further contends that the agency has misstated its argument
because the issue is not whether the agency would have had legitimate,
nondiscriminatory reasons for terminating her, but whether it had proven
by clear and convincing evidence that it would have actually terminated
her even absent her protected activity.
In addition, the agency contends that the AJ erred in determining that
complainant's counsel was entitled to attorney's fees of $92,029.50.
The agency states that in ordering this award, the AJ accepted the
attorney's fees petition in its entirety, without granting any reduction,
despite the agency's argument that the lodestar should be reduced due
to the limited success of complainant's claim. In response, complainant
contends that the AJ did not err in concluding that the agency had failed
to carry its burden to overcome the "strong presumption" in favor of
the lodestar fee.
Complainant's Cross-Appeal
Complainant additionally cross-appeals the final order. She disputed
the AJ's finding that she was only entitled to $20,000.00 in compensatory
damages. She asserts that the award of non-pecuniary compensatory damages
should be increased to $50,000.00 in light of the duration and expected
duration of the harm. She also asserts that she did suffer anxiety,
sleeplessness and depression prior to joining the agency; however, those
conditions were aggravated by the discriminatory conduct of management.
Complainant asserts that the harm resulting to her from the retaliation
was severe. Complainant asserts (contrary to the agency's argument)
that for purposes of calculating the harm suffered, it is irrelevant
that she had not been employed for very long after she was terminated.
Complainant points out that the AJ found that as a direct and proximate
result of the agency's retaliation, she suffered emotional and physical
harm.
In reply, the agency asserts that even assuming, arguendo that
compensatory damages were warranted, a $20,000.00 award was clearly
excessive. The agency points out that complainant only prevailed on one
claim, the termination. Additionally, the agency contends that while
complainant produced medical evidence to support her claim of emotional
distress, this same evidence demonstrated that every medical condition
claimed by complainant was a pre-existing condition. The agency states
that, in the months immediately following her termination (the only
discriminatory act for which the agency is liable), there is no medical
evidence that the termination exacerbated complainant's pre-existing
emotional conditions. The agency asserts that as complainant herself
testified, it "took [her] a while to get to a doctor" and eventually she
did begin seeing a psychiatrist in February 2006, nineteen months after
her termination. The agency states that accordingly, there is no medical
evidence that the actual termination caused complainant's emotional harm.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held. An AJ's
credibility determination based on the demeanor of a witness or on the
tone of voice of a witness will be accepted unless documents or other
objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
The statutory retaliation clauses prohibit any adverse treatment that
is based on a retaliatory motive and is reasonably likely to deter
the charging party or others from engaging in protected activity.
Petty slights and trivial annoyances are not actionable, as they are
not likely to deter protected activity. More significant retaliatory
treatment, however, can be challenged regardless of the level of harm.
As the Ninth Circuit has stated, the degree of harm suffered by the
individual "goes to the issue of damages, not liability." Hashimoto
v. Dalton, 118 F.3d 671, 676 (9th Cir. 1997). Smith v. Secretary of
Navy, 659 F.2d 1113, 1120 (D.C. Cir. 1981) ("the questions of statutory
violation and appropriate statutory remedy are conceptually distinct.
An illegal act of discrimination-whether based on race or some other
factor such as a motive of retaliation - is a wrong in itself under
Title VII, regardless of whether that wrong would warrant an award of
[damages]''). The retaliation provisions set no qualifiers on the term
"to discriminate," and therefore prohibit any discrimination that is
reasonably likely to deter protected activity. A violation will be found
if an employer retaliates against a worker for engaging in protected
activity through threats, harassment in or out of the workplace, or any
other adverse treatment that is reasonably likely to deter protected
activity by that individual or other employees. EEOC Compliance Manual
on Retaliation, No. 915.003, at 8-14 through 8-16 (May 20, 1998)
It is not disputed that complainant was terminated based on her engaging
in protected EEO activity. Therefore, the burden shifts to the agency to
prove by clear and convincing evidence that she would have been discharged
even absent discrimination. See 29 C.F.R. � 1613.271. The agency asserts
that complainant would have been terminated regardless of the retaliation
because she had performance deficiencies. However, the AJ found that
there were no performance evaluations or disciplinary write ups that
would support this contention. AJ Decision at 14. As to the agency's
claim that complainant failed to follow instructions, the AJ found that
complainant complied with S1's instructions, with the exception of the
instruction that she stay away from A1 (which complainant avers was well
within the realm of her job responsibilities). Id.
Additionally, after holding a seven day long hearing, observing the
demeanor and hearing the tone of voice of 14 witnesses who testified, the
AJ made numerous credibility determinations in his lengthy decision,
including that much of management's testimony about the alleged
deficiencies in complainant's work performance was not credible.2 We find
that the AJ's determination that the agency failed to show that, absent
discrimination, the agency would still have terminated complainant, is
supported by substantial evidence. Accordingly, complainant is entitled
to make-whole relief.
Attorney's Fees
The agency disputes the AJ's determination that complainant's counsel
was entitled to attorney's fees in the amount of $94,373.08. The agency
contends that in ordering this award, the AJ accepted the attorney's fees
petition in its entirety, without granting any reduction, despite the
agency's argument that the lodestar should be reduced due to the limited
success of complainant's claim. The agency states that the lodestar in
this case should be significantly reduced because complainant prevailed on
only one claim. The agency contends that the AJ erroneously found that
complainant's discrimination and retaliation claims were "so intertwined
that it is very difficult to separate the claims or which fee should go
to which claim." The agency asserts that the complaint contains very
easily separable claims, and complainant only prevailed on one claim,
the termination. The agency asserts that complainant should receive
no more than $7,669.13. The agency further states: "If the Commission
determines that complainant's level of success merits a greater award,
then a 75% across the board reduction in the fee award ordered by the
AJ is clearly appropriate, representing an award of attorney's fees not
to exceed $23,007.38."
Complainant is entitled to an award of attorney's fees and costs for the
successful processing of an EEO complaint under GERA. See 42 U.S.C. �
2000e-16(c)(e). The fee award is ordinarily determined by multiplying a
reasonable number of hours expended on the case by a reasonable hourly
rate, also known as the "lodestar." See 29 C.F.R. � 1614.501(e)(2)(ii)(B);
Bernard, EEOC Appeal No. 01966861 (citing Blum v. Stenson, 465 U.S. 886
(1984)).
Attorney's fees may not be recovered for work on unsuccessful
claims. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). Courts
have held that fee applicants should exclude time expended on "truly
fractionable" claims or issues on which they did not prevail. See Nat'l
Ass'n of Concerned Veterans v. Sec'y of Defense, 675 F.2d 1319, 1327 n.13
(D.C. Cir. 1982). Claims are fractionable or unrelated when they involve
"distinctly different claims for relief that are based on different
facts and legal theories." Hensley, 461 U.S. at 434-35.
Upon review, the Commission finds that complainant raised and pursued
two claims in her formal complaint, namely, a discriminatory terms
and conditions claim (comprised of several incidents), and a claim
of discriminatory termination. Complainant prevailed on only one of
the claims; however, the claims are substantially interrelated. First,
reprisal and sex discrimination were identified as bases for both claims.
Second, issue (2) involved many of the events leading up to complainant's
termination, and provided vital context to understanding how and why
complainant's employment was ultimately terminated. The agency's
articulated legitimate, nondiscriminatory reason for the termination
involved alleged deficiencies in complainant's performance and conduct,
and many of the details concerning complainant's job performance and
conduct were addressed in the testimony and evidence brought forth
concerning issue (1). In addition, even if complainant had only pursued
the termination claim, although it might have been somewhat less lengthy,
a hearing would still have been held, and perhaps not all, but many
of the witnesses would still have been called to testify. Moreover,
as the AJ noted, the agency failed to provide adequate guidance for
determining which fees belonged to which claim. Accordingly, we find
that substantial evidence supports the AJ's award of attorney's fees in
the amount of $94,373.08.
Compensatory Damages
In West v. Gibson, 527 U.S. 212 (1999), the Supreme Court held that
Congress afforded the Commission the authority to award compensatory
damages in the administrative process. Section 102(a) of the CRA,
codified as 42 U.S.C. � 1981a, authorizes an award of compensatory
damages as part of the "make whole" relief for intentional discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended.
Section 1981a(b)(3) limits the total amount of compensatory damages
that may be awarded to each complaining party for future pecuniary
losses, emotional pain, suffering, inconvenience, mental anguish, loss
of enjoyment of life, and other non-pecuniary losses, according to the
number of persons employed by the respondent employer. The limit for
an employer with more than 500 employees, such as the agency herein,
is $300,000.00. 42 U.S.C. � 1981a(b)(3)(D).
The particulars of what relief may be awarded, and what proof is
necessary to obtain that relief, are set forth in detail in Enforcement
Guidance: Compensatory and Punitive Damages Available Under � 102 of
the Civil Rights Act of 1991, EEOC Notice No. 915.002, (July 14, 1992)
(Guidance).
Non-pecuniary Damages
Here, complainant disputes only the amount of non-pecuniary damages
awarded, and requests that the Commission increase the award to $50,000.00
based on the record evidence. In Carle v. Department of the Navy, the
Commission explained that evidence of non-pecuniary damages could include
a statement by the complainant explaining how he or she was affected
by the discrimination. EEOC Appeal No. 01922369 (January 5, 1993).
Statements from others, including family members, friends, and health
care providers could address the outward manifestations of the impact
of the discrimination on the complainant. Id. The complainant could
also submit documentation of medical or psychiatric treatment related
to the effects of the discrimination. Id. Non-pecuniary damages must be
limited to the sums necessary to compensate the injured party for the
actual harm and should take into account the severity of the harm and
the length of the time the injured party has suffered from the harm.
Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652 (July
17, 1995).
As noted by the AJ in his decision, in support of her claim for
non-pecuniary damages, complainant and several witnesses supplied
testimony regarding her emotional distress. Complainant testified that
shortly after her termination, she became embarrassed, cried a lot and
had suffered sleeplessness. Complainant further testified that she was
afraid, and that she had an intense chest pain, which she thought was a
gallbladder problem. As a result, she went to see her doctor. After
the diagnosis, it was determined that complainant had a heart attack.
She also stated that she continued to see physicians concerning a variety
of issues, which includes, but is not limited to depression, anxiety,
and chest pain. As a result, she was placed on several medications.
Complainant testified that she had lost her "dream job," lost her
professional standing within that community and all her friends, all of
which contributed to her depression and anxiety.
The AJ found that, in addition, complainant testified that while they
were in Traverse City, Michigan, they kept a home in Missouri and she
was the one paying for the mortgage. As a result of the termination, she
was not able to keep up the mortgage payments and they lost their home.
Complainant's husband testified that shortly after the termination,
complainant became depressed. They hardly did things as husband and
wife anymore, and they were embarrassed to move back to Missouri.
In addition, he testified that complainant suffers sleepless nights,
low self-esteem and crying, as a result of the termination.
The AJ concluded that complainant did have some pre-existing conditions
prior to joining the agency, namely, she did suffer anxiety and emotional
depression prior to joining the agency. However, the AJ found that those
conditions were aggravated by the discriminatory conduct of the employer.
The AJ noted that the agency, as the tortfeasor, takes the victim as she
is and is responsible for the damages proximately caused by this conduct.
The AJ found that an award of $20,000.00 was appropriate.
As previously noted, complainant has requested $50,000.00 in
compensatory damages, and the agency argues that no non-pecuniary
damages are warranted. After a thorough review of the record, we
find that the AJ properly determined that complainant is entitled
to an award of non-pecuniary compensatory damages, however based
on the record, we find that an award of $20,000.00 is inadequate to
make her whole. The Commission finds that $50,000.00 is appropriate
to compensate complainant for her physical and emotional pain and
suffering resulting from the retaliatory termination. We point
out that non-pecuniary compensatory damages are designed to remedy
a harm and not to punish the agency for its discriminatory actions.
See Memphis Community School Dist. v. Stachura, 477 U.S. 299, 311-12
(1986) (stating that compensatory damages determination must be based
on the actual harm sustained and not the facts of the underlying case).
The Commission notes that this award is not "monstrously excessive"
standing alone, is not the product of passion or prejudice, and is
consistent with the amount awarded in similar cases. See Cavanaugh
v. United States Postal Serv.,, EEOC Appeal No. 07A20102 (November
12, 2003) (awarding $50,000.00 in non-pecuniary damages where due to
discrimination, complainant experienced exacerbation of her depression,
anxiety symptoms, increased need for medication, marital problems,
negative effect on social life and interaction family relationships,
distrust of others, irritability, sleeplessness, and tension headaches);
Turner v. Department of the Interior, EEOC Appeal No. 01956390 (April
27, 1998) (providing $40,000.00 where discriminatory harassment caused
complainant to experience psychological trauma and physical injury
with permanent effects); Carpenter v. Department of Agriculture, EEOC
Appeal No. 01945652 (July 17, 1995) (awarding $75,000.00 in a failure
to accommodate case which resulted in emotional harm to complainant
which damaged his relationships with family and friends and reduced his
quality of life, as well as resulting in physical manifestations such
as a digestive disorder). Accordingly, we conclude that the amount of
$50,000.00 is appropriate in this case.
Finally, since the agency has not met its burden of showing that
complainant would have been terminated at the same approximate time
even if retaliation had not been a factor, the AJ properly required the
responsible management officials to attend training.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we MODIFY the final
order. Specifically, we are ordering all relief ordered by the AJ and
additionally raising the damages amount to $50,000.00. The agency is
directed to comply with the Order below.
ORDER
To the extent it has not already done so, the agency shall do the
following within sixty (60) days:
(1) reinstate complainant to her position as a Victim Specialist,
retroactive to the date of termination;
(2) restore all of complainant's lost wages and benefits3;
(3) provide pecuniary compensatory damages in the amount of $4,944.07;
(4) provide non-pecuniary compensatory damages in the amount of
$50,000,00;
(5) reimburse complainant's costs for pursuing this complaint in the
amount of $1,370.86;
(6) provide attorney's fees and costs in the amount of $94,373.08;
(7) remove all the negative referenced information concerning the
termination from complainant's personnel file, and restore all security
clearances that complainant may be entitled to;
(8) provide the responsible managers and supervisors with a minimum of
eight hours of training regarding their responsibilities under Title
VII, with special emphasis on the obligation not to retaliate against
employees for engaging in EEO activity; and
(9) consider taking appropriate disciplinary action against the
responsible management officials. The Commission does not consider
training to be disciplinary action. The agency shall report its decision
to the Compliance Officer. If the agency decides to take disciplinary
action, it shall identify the action taken. If the agency decides
not to take disciplinary action, it shall set forth the reason(s)
for its decision not to impose discipline. If any of the responsible
management officials have left the agency's employ, the agency shall
furnish documentation of their departure date(s).
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Detroit Field Office, Traverse City
Residence Agency, 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 (K1208)
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 (M1208)
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 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 (T0408)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 (Z1008)
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
____11/05/09______________
Date
1 By letter dated October 23, 2007, the agency notified complainant
that she was offered, as interim relief, an appointment in the Federal
Bureau of Investigation, United States Department of Justice, a Victims
Specialist position, GS 11, in the Knoxville Division.
2 We note that the record contains an email dated July 8, 2004 from
S1 to complainant, which undermines management's assertion that it
would have terminated complainant regardless of the retaliation, for
performance-related reasons. The email states: "I have not talked to [a
Supervisory Special Agent] about anything in over 6 months, and have not
complained to him about your work. You have received, both telephonically
and via e-mail, information about how your performance is progressing.
Let's talk about any concerns you have the next time we meet. Thanks..."
ROI, at Attachment 7.
3 As the AJ indicated, complainant is entitled to all the cost of living
adjustments, interest and stock interests (retroactive to the date she
was terminated) and restoration of any seniority status she lost.
??
??
??
??
2
0720080008
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
13
0720080008