Christine Falvo, Complainant,v.Robert M. Gates, Secretary, Department of Defense, (Defense Finance & Accounting Service), Agency.

Equal Employment Opportunity CommissionJun 10, 2010
0720080009 (E.E.O.C. Jun. 10, 2010)

0720080009

06-10-2010

Christine Falvo, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Defense Finance & Accounting Service), Agency.


Christine Falvo,

Complainant,

v.

Robert M. Gates,

Secretary,

Department of Defense,

(Defense Finance & Accounting Service),

Agency.

Appeal No. 0720080009

Hearing No. 160-AO-8772X

Agency Nos. DFAS-IN-RO-99-030,

DFAS-IN-RO-99-045

DECISION

Following its November 6, 2007 final action, the agency filed a

timely appeal. On appeal, the agency requests that the Commission

affirm its rejection of an EEOC Administrative Judge's (AJ) finding

of discrimination in violation of Section 501 of the Rehabilitation

Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.

The agency also requests that the Commission affirm its rejection of

the relief ordered by the AJ. Complainant has also filed an appeal from

the agency's decision which will be considered in this decision.

BACKGROUND

At the time of events giving rise to this complaint, complainant was

seeking employment at the agency's work facility in Rome, New York.

On June 2, 1999, and August 4, 1999, complainant filed EEO complaints

wherein she claimed that she was discriminated against on the bases of

disability (asthma, degenerative disc disease, cervical sprain, pregnancy)

and reprisal for her husband's prior protected EEO activity under the

Rehabilitation Act. The claims accepted for investigation from these

complaints were as follows:1

1. Complainant was not selected for the position of GS-525-5, Accounting

Technician under Vacancy Announcement No. PH-9-0284.

2. The agency's Rome facility established an area of consideration

that denied complainant eligibility as an applicant for a GS-510-5/11

Accounting Technician position under Vacancy Announcement No. XI-0022-99.

3. Complainant was not selected for an accounting technician position,

GS-525-05, under Vacancy Announcement No. XI-0021-99Q, for Referral

lists 8 or 9.

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 AJ. Complainant requested a hearing and the AJ

held a hearing on October 22, 2003, and issued a decision on September

28, 2004.

The AJ found that no disability discrimination occurred with regard to any

of the claims. The AJ also found that no reprisal occurred with regard

to claims 1 - 2 and no reprisal for the non-selection in Referral list 8

in claim 3. The AJ, however, found that complainant was discriminated

against on the basis of reprisal in claim 3 for the non-selection in

Referral list 9.

With respect to the finding of no disability discrimination, the AJ

found that complainant is not an individual with a disability. The AJ

stated that although complainant has physical impairments, the evidence

did not establish that these impairments substantially interfered with

a major life activity. The AJ further stated that complainant does not

have a record of having such an impairment and is not regarded as having

such an impairment. The AJ noted that being recognized as disabled by

the New York States Office of Vocational and Educational Services for

Individuals with Disabilities (VESID) does not automatically equate to

proving disability under the Rehabilitation Act.

As to the claims of reprisal where the AJ found no discrimination, the

AJ stated with regard to claim 1 that complainant was found qualified and

referred for selection with 108 other applicants. Complainant received a

rating of 80 from the Office of Personnel Management (OPM). All of the

selected applicants were current or temporary or term employees of the

agency's Rome facility and all had an OPM rating between 89 and 103.3.

Four of the 48 selectees were identified as having a disability.

The AJ noted that the Personnel Management Specialist testified that

the agency intended to convert as many employees as possible of those

who were currently working for them on a less than permanent basis to

a permanent basis through these selections.

As for claim 2, the AJ noted that the agency stated that complainant was

not eligible for the position because only current status applicants

or applicants with reinstatement eligibility or special appointment

eligibility and agency employees in the commuting area were eligible.

According to the agency, complainant's reinstatement eligibility

expired on August 18, 1998, and no selections were made from the vacancy

announcement. The agency stated that complainant had applied under the

announcement as a reinstatement eligible rather than as a VESID candidate.

The AJ found that complainant failed to prove that the agency's decision

not to make selections through this vacancy announcement was made to

avoid selecting her. The AJ noted that the decision to cancel the

announcement was not made by the Rome Office.

With regard to claim 3, the AJ noted that complainant was interviewed

under Referral list 8 and that the interview was conducted one day after

complainant's husband filed an informal complaint of discrimination.

Complainant was not recommended by the two panel members and no

reason was provided. Complainant was therefore not considered by

the selecting official. With respect to Referral list 9 (which was

subsequent to Referral list 8), this pertained to the same position as

Referral list 8, but in this instance complainant was not interviewed by

the panel. The Personnel Management specialist decided that complainant

would not be interviewed and thus she was not referred to the panel.

The AJ observed that the agency's explanation for not interviewing

complainant under Referral list 9 was its policy that once an applicant

is interviewed and not selected for a particular position that applicant

is not re-interviewed for the same position at a later time. The AJ found

that the Personnel Management Specialist's testimony on this issue was not

credible. The AJ noted that the Personnel Management Specialist was aware

of complainant's husband's EEO activity at the time of the non-referral.

The AJ cited an agency regulation which stated in pertinent part that:

"In the event that some of the certified candidates are not interviewed,

the selecting official should document the merit promotion record with the

reason for not interviewing a candidate. Acceptable reasons include: (1)

candidate is under the direct supervision of the selecting (nominating)

official, (2) candidate is unavailable for interview, or (3) candidate

was interviewed within the previous six months, by the same selecting

official, for a similar position . . ."

The AJ found that not referring complainant for an interview was in

direct conflict with this regulation. The AJ stated that complainant

was available to be interviewed, by a panel whose members and selecting

officials were different from the panel she interviewed with at a

prior date. The AJ noted that no notes were kept of the interviews

and therefore she assumed that complainant would have been selected,

as she was admittedly qualified and many positions were available.

In terms of relief, the AJ awarded complainant $6,000.00 in non-pecuniary,

compensatory damages. The AJ observed that complainant suffered stress,

frustration, embarrassment, and depression when she was not selected for

the position. Additionally, complainant claimed that the emotional strain

negatively affected her home life, necessitating four sessions of couples

therapy. Complainant was awarded two years of back pay in the amount of

$17,305.00, plus interest. Complainant was denied front pay as the AJ

deemed it too speculative that complainant would have been converted to

a full-time regular employee when the term of her temporary appointment

concluded. The AJ also denied complainant pecuniary damages as she

noted that no documentation in support of such damages was submitted.

The AJ awarded attorney's fees in the amount of $13,695.00. The AJ

noted that agency sought a reduction to half that amount to reflect

complainant's lack of success on the first two claims. The AJ reasoned

that no reduction was warranted given that the work performed by

complainant's attorney and his associate on the prevailing issue had a

common core of facts and related legal theories with the two issues in

which no discrimination occurred. Additionally, complainant was awarded

costs of $284.15. The agency was ordered to post a notice at the Rome

facility concerning the discrimination and the responsible management

officials at that facility were ordered to receive appropriate EEO

training.

The agency subsequently issued a final order stating that it would not

fully implement the AJ's decision.

On appeal, the agency contends that the AJ's finding of reprisal in claim

3 is not supported by substantial evidence in the record. The agency

maintains that the AJ ignored its "Temp policy" in finding that it did

not comply with the appropriate regulations when choosing not to send

complainant for an interview for Referral list 9. The agency stated

that it acted consistent with the Temp policy and that interviewing

complainant under Referral list 9 would have been a deviation from

the policy. The agency points out that the 99 other applicants on this

referral list who were not hired after being interviewed under a prior

referral list for the vacancy announcement were also not interviewed

again. The agency maintains that its adherence to a standard selection

procedure does not support an inference of pretext.

The agency challenges the AJ's finding that the decision not to send

complainant for an interview was in direct conflict with regulation.

According to the agency, the regulation at issue is no more than a

guidance offered to managers and supervisors involved in the selection

of new employees. The agency states that the guidance is entitled

"Instructions to Selecting Supervisors" and is included on the cover

page of each referral list. The agency denied that such instructions

were mandatory for every selection. The agency further argues that

neither the evidence in the record nor the hearing testimony support

the AJ's finding that complainant, as a VESID candidate, should have

been referred under the applicable regulations for an interview.

With respect to attorney's fees, the agency requests that should

discrimination be found, that the award of attorney's fees be reduced

by 66% to $4,519.35 to reflect complainant's lack of success as to the

other claims. The agency maintains that the claims were not closely

intertwined. The agency argues that the nonselections in claims 1 -

2 involve discrete incidents and different facts than those central to

claim 3.

On appeal, complainant contends that the AJ erred when she found no

reprisal with regard to Referral list 8. Complainant states that she

was listed as a group 3, five point preference eligible candidate for

Referral list 8. Complainant states that she was not selected even

though the requirements on the lists of candidates mention that a group 3

candidate must be selected before any non-preference eligible candidates

are selected. Complainant states that no evidence has been provided

regarding the qualifications and scoring of candidates, the selection

criteria, the ranking, or the selection decision. Complainant notes

that the selecting official did no investigation of the qualifications

of the individuals recommended by the panel. Complainant stated during

the investigation that she believed her educational credentials and

accounting experience rendered her a better candidate than many of

those selected. Complainant states that notes of the interviews and the

written recommendations of the panel were not preserved by the agency.

Also, complainant states that no documentation exists to indicate why

all the selected candidates were non-preference eligible candidates.

According to complainant, the agency was aware of her husband's protected

activity during the time that she sought employment at the Rome facility.

Complainant contends that the agency has not provided a legitimate,

nondiscriminatory reason for not selecting her.

Complainant maintains that the AJ's finding of reprisal with regard to

Referral list #9 is supported by substantial evidence. Complainant states

that no agency witness other than the Personnel Management Specialist was

aware of the unwritten Temp policy. Complainant states that the policy

was created by the Personnel Management Specialist, who was aware of

her husband's protected activity. Complainant notes that the selecting

officials for Referral list #9 testified that the Personnel Management

Specialist decided who would be interviewed. Complainant states that

no one who was not interviewed has been hired from a referral at the

Rome facility.

Complainant contends that her back pay award should extend beyond

two years. Complainant states that in the three years prior to her

application, every term appointment except one was converted to a

permanent position. Complainant maintains that given the near universal

conversion rate, it is not speculative to assume she would have been

converted to a permanent or term position absent a discriminatory reason.

Complainant requests back pay from the date of discrimination to the

date the damages award was issued with interest.

Complainant argues that the AJ erred in finding no disability

discrimination. According to complainant, she has a record of impairment

and/or was regarded as having such an impairment for purposes of the

Rehabilitation Act. Complainant states that VESID identified her as

eligible for selective placement as a disabled worker, and indicated

to the agency that she had some limitations. Complainant states that

the EEO Investigator documented that management inferred that they

perceived her to be disabled based on VESID referring her for employment

and selective placement. Complainant maintains that the agency's

inconsistent explanations regarding the processing of her applications

constitute persuasive evidence that the agency is seeking to hide its

discriminatory motivation. Complainant states that at first she was

told her application had been lost and subsequently she was informed

that was she was not eligible because she had incorrectly completed her

application.

With respect to attorney's fees, complainant contends that a reduction

should be denied since although the three nonselections were separate

incidents, they occurred close in time to each other, occurred in the

same workplace, had the same alleged discriminatory official, and share

a common core of events.

In response to complainant's appeal, the agency asserts that complainant

failed to demonstrate that she is substantially limited in a major life

activity due to her alleged physical impairments. With regard to the AJ's

finding of no reprisal as to Referral list 8, the agency states that the

two panel members and the selecting official were unaware of complainant's

husband's protected activity. The agency notes that the one official in

the process who was aware, the Personnel Management Specialist, included

complainant on the list of applicants to be interviewed. As for the

AJ's finding of reprisal, the agency asserts that it acted consistent

with the hiring policy applicable to all temporary appointments who had

previously been interviewed for the same temporary position under one

of the first eight referral lists.

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).

Complainant can establish a prima facie case of reprisal discrimination

by presenting facts that, if unexplained, reasonably give rise to

an inference of discrimination. Shapiro v. Social Security Admin.,

EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal

claim, and in accordance with the burdens set forth in McDonnell

Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,

425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),

and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473

(November 20, 1997), a complainant may establish a prima facie case of

reprisal by showing that: (1) he or she engaged in a protected activity;

(2) the agency was aware of the protected activity; (3) subsequently,

he or she was subjected to adverse treatment by the agency; and (4) a

nexus exists between the protected activity and the adverse treatment.

Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340

(September 25, 2000).

The retaliation provisions of the EEO statutes prohibit retaliation

against someone so closely related to or associated with a person who

exercises her statutory rights that it would discourage or prevent

the person from pursuing those rights. Weikle v. United States Postal

Service, EEOC Appeal No. 01A00398 (April 3, 2000). It would therefore be

unlawful for an agency to retaliate against an employee because his or her

spouse, who is also an employee, pursued the EEO complaint process. Id.

The Commission finds that the prior EEO activity of complainant's spouse

is a proper basis of discrimination under Title VII.

In analyzing a disparate treatment claim under the Rehabilitation Act,

where the agency denies that its decisions were motivated by complainant's

disability and there is no direct evidence of discrimination, we apply

the burden-shifting method of proof set forth in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973). See Heyman v. Queens Village

Comm. for Mental Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68

(2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999).

Under this analysis, in order to establish a prima facie case, complainant

must demonstrate that: (1) she is an "individual with a disability"; (2)

she is "qualified" for the position held or desired; (3) she was subjected

to an adverse employment action; and (4) the circumstances surrounding

the adverse action give rise to an inference of discrimination.

Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001). The burden

of production then shifts to the agency to articulate a legitimate,

non-discriminatory reason for the adverse employment action. In order

to satisfy her burden of proof, complainant must then demonstrate by a

preponderance of the evidence that the agency's proffered reason is a

pretext for disability discrimination. Id.

We shall assume arguendo, that complainant is an individual with a

disability and established a prima facie case of disability and reprisal

discrimination. We do not decide whether complainant is a qualified

individual with a disability under the Rehabilitation Act.

Claims 1 and 2

The agency explained with regard to claim 1 that complainant was not

selected for the Accounting Technician position since she received a

rating of 80 from the OPM and all selected applicants were current

or temporary or term employees of the Rome facility and all had an

OPM rating between 89 and 103.3. The Personnel Management Specialist

stated that the agency intended to convert as many employees as possible

who were currently working for it on a less than permanent basis to a

permanent basis through these selections. As for claim 2, the agency

stated that no selections were made as the vacancy announcement was

canceled. The agency further noted that complainant was not eligible

for the position because only current status applicants or applicants

with reinstatement eligibility or special appointment eligibility and

agency employees in the commuting area were eligible. The agency stated

that complainant's reinstatement eligibility expired on August 18, 1998.

We find that the agency articulated legitimate, nondiscriminatory reasons

for its nonselection of complainant in both claims 1 and 2.

Upon review of the record, we find that complainant has not offered

persuasive evidence of pretext to support her position with regard to

claims 1 and 2. Further, the AJ's findings of no discrimination for

claims 1 and 2 are supported by substantial evidence.

Claim 3

With regard to the portion of claim 3 concerning Referral list 8,

complainant failed to establish a prima facie case of reprisal. The

record reveals that the two panel members who referred candidates for

selection and conducted the interviews and the selecting official were

unaware of complainant's husband's EEO activity. The AJ's finding on

this issue is supported by substantial evidence. As for the disability

claim concerning Referral list 8, the record offers no support that

complainant's disability was a factor in her nonselection. The panel

members testified that they asked the same questions of each person

interviewed and that they then rated the candidates after the interviews

were completed. The selecting official acknowledged that he basically

ratified the candidates referred to him by the panel as his method of

selection. There is no indication that complainant's nonselection was

attributable to her disability.

With regard to that portion of claim 3 involving Referral list 9,

complainant was not selected in part because she was not interviewed

for the position. The official who did not refer her for an interview

with the panel was the Personnel Management Specialist. The Personnel

Management Specialist claimed that the policy was that an applicant

who is interviewed and not selected for a particular position is not

re-interviewed for the same position at a later time. This unwritten

policy admittedly developed by the Personnel Management Specialist is

contrary to the guidance for the referral list that specifically stated

that, "If interviews are held, all of the certified candidates should be

interviewed whenever possible." One of the exceptions to the interview

expectation was a candidate who had been interviewed within the previous

six months, by the same selecting official, for a similar position.

With respect to Referral list 9, the two selecting officials were also

the panel members and neither of them was the selecting official for

Referral list 8, the referral under which complainant was interviewed.

The evidence is insufficient to establish that the Personnel Management

Specialist's motivation for not referring complainant for an interview

was an intent to discriminate on the basis of disability. However, with

regard to reprisal, the record reflects that the Personnel Management

Specialist was aware of complainant's husband's protected EEO activity

which was occurring during the period that complainant sought employment

with the agency. The record reveals that the Personnel Management

Specialist was interviewed during the investigation of complainant's

husband's EEO complaint. The AJ found that the Personnel Management

Specialist's testimony as to Referral list 9 was not credible based on

his failure to offer a plausible reason for not interviewing complainant.

We agree with the AJ's rationale for this credibility determination.

We find that the AJ's finding of reprisal with regard to Referral list

9 is supported by substantial evidence.

Remedies

Neither party has challenged the amount of compensatory damages awarded

by the AJ or the AJ's decision not to award front pay or pecuniary

damages. Therefore, we do not alter those findings.

With regard to complainant's entitlement to back pay, complainant claims

that she should have been awarded more than two years due to the fact that

it was virtually automatic that every term appointment was converted to

a permanent position. However, we agree with the AJ that two years of

back pay is appropriate given that complainant applied for a temporary

position that was not to exceed one year, but may have been extended for

one additional year. Therefore, we find that the award of $17,305.00

plus interest was appropriate.2

Complainant is entitled to attorney's fees as long as she has obtained

some relief on the merits of her claim. See Farrar v. Hobby, 506

U.S. 103, 112 (1992). "In short, a plaintiff 'prevails' when actual

relief on the merits of his claim materially alters the legal relationship

between the parties by modifying the defendant's behavior in a way that

directly benefits the plaintiff." The magnitude of the relief obtained

is not dispositive. The Commission has found that a complainant is a

prevailing party even in situations where only a finding of discrimination

and a posting was ordered. See McGinnis v. Department of Defense, EEOC

Request No. 05920150 (July 15, 1992). Accordingly, in light of the fact

that complainant obtained some relief on her complaint, we agree with the

AJ's finding that she is a prevailing party for attorney's fees purposes.

By federal regulation, the agency is required to award attorney's fees

for the successful processing of an EEO complaint in accordance with

existing case law and regulatory standards. EEOC Regulation 29 C.F.R. �

1614.501(e). To determine the proper amount of the fee, a lodestar

amount is reached by calculating the number of hours reasonably expended

by the attorney on the complaint multiplied by a reasonable hourly rate.

Blum v. Stenson, 465 U.S. 886 (1984); Hensley v. Eckerhart, 461 U.S. 424

(1983). The circumstances under which the lodestar may be adjusted

are strongly limited, and are set forth in EEO Management Directive 110

(November 9, 1999). A fee award may be reduced: in cases of limited

success; where the quality of representation was poor; the attorney's

conduct resulted in undue delay or obstruction of the process; or where

settlement likely could have been reached much earlier, but for the

attorney's conduct. Id. at p. 11-7. The party seeking to adjust the

lodestar, either up or down, has the burden of justifying the deviation.

Id. at p. 11-8.

The agency did not dispute the lodestar amount of $13,695.00, but

rather it contends that the award of $13,695.00 should be reduced

by 66% to reflect complainant's lack of success on all of her claims

other than the reprisal basis for claim 3. Each of the claims however

concern complainant not being selected for an Accounting Technician

position at the Rome facility. Complainant focused on the Personnel

Management Specialist as the primary discriminatory official in the

respective claims. Upon review of the respective claims, we find that the

issues that resulted in a finding of no discrimination are sufficiently

overlapping with the prevailing claim to justify the award of $13,695.00

issued by the AJ.

CONCLUSION

The agency's final action adopting the AJ's decision finding no

discrimination on the basis of disability for claims 1 - 3 and no

reprisal for claims 1 and 2 and that portion of claim 3 that concerns

Referral list 8 is AFFIRMED. The agency's final agency rejecting the

AJ's finding of reprisal for that portion of claim 3 involving Referral

list 9 is REVERSED. The agency shall comply with the Order herein which

slightly modifies the relief ordered by the AJ.

ORDER

The agency shall take the following remedial actions:

1. Within 30 days of the date this decision becomes final, the agency

shall pay complainant $13,695.00 in attorney's fees and $284.15 in

costs.

2. Within 30 days of the date this decision becomes final, the agency

shall pay complainant $6,000.00 in non-pecuniary, compensatory damages.

3. Within 30 days of the date this decision becomes final, the agency

shall pay complainant $17,305.00 plus interest in back pay.

4. Within 180 days of the date this decision becomes final, the agency

shall provide EEO training to the responsible agency officials focusing

on the agency's obligation to not commit reprisal.

5. Within 180 days of the date this decision becomes final, the agency

shall consider taking appropriate disciplinary action against the

responsible agency officials still employed by the agency. 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 reasons(s) for its decision not to impose discipline. If any

of the responsible agency officials have left the agency's employment,

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 actions have been implemented.

POSTING ORDER (G0900)

The agency is ordered to post at its Rome, New York 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 (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

June 10, 2010

__________________

Date

1 Other bases were withdrawn and other claims were dismissed prior to

the hearing. Complainant does not object to the dismissal of those

claims and they are not at issue in this appeal.

2 Neither party has challenged the AJ's calculation of back pay for the

two-year period.

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0720080009

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington,

DC 20013

2

0720080009