01974949
10-28-1999
Dawn McGuire, Appellant, Agency Nos. WGS-94-031,94-037 v. Bruce Babbitt, Department of the Interior, Agency.
Dawn McGuire, )
Appellant, ) Appeal No. 01974949 )
Agency Nos. WGS-94-031,94-037
v. ) 95-007, 95-018
) )
Bruce Babbitt, ) Secretary,
)
Department of the Interior, )
Agency. )
______________________________)
DECISION
INTRODUCTION
On June 2, 1997, Dawn McGuire (hereinafter referred to as appellant)
timely appealed the final agency decision, received on May 5, 1997,
that it did not discriminate against her based on her sex (female), age
(43) and in reprisal for her prior EEO activity, when she was allegedly
subjected to a continuing pattern of discrimination and reprisal through
incidents which occurred from March 1994 through January 1995.<1> See
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e
et seq. We accept appellant's appeal pursuant to EEOC Order No. 960,
as amended. For the reasons that follow, the agency's decision is
AFFIRMED in part and REVERSED in part.
ISSUE PRESENTED
The issues presented are whether (1) Whether allegations 2 and 16 in
[WGS-94-031], allegation 6 in [WGS-95-007] and allegations 2, 3 and 4 in
[WGS-95-018] were properly dismissed for failure to state a claim; and
(2) whether appellant has been subjected to a pattern of discrimination
and harassment based on her sex, age, and in reprisal for her prior
EEO activity.
BACKGROUND
At the time of the events discussed herein, appellant was employed as a
Research Geologist, GS-1350-13, on the Mineral Resources Survey Team in
the Geochemistry section of the Office of Mineral Resources within the
U.S. Geological Survey. Beginning in late March 1994, she was employed
as a Geologist (GS-1350-14), Associate Branch Chief, in the Branch of
Earthquake and Landslide hazards (BELH). Appellant was terminated from
this position on October 14, 1994 as a result of an agency reduction in
force (RIF).<2> In formal EEO complaints dated July 25, 1994 [WGS-94-031],
September 19, 1994 [WGS 94-037], November 28, 1994 [WGS-95-007] and
March 23, 1995 [WGS-95-018], appellant raised 32 allegations of sex and
reprisal discrimination. She also raised age discrimination in 11 of
the allegations.
Appellant asserted that the following agency officials played a role
in some or all of her allegations of discrimination: the Chief of the
Branch of Geochemistry (BGC), Mineral Resources Survey Team-her third
level supervisor (Responsible Management Official-1); her first level
supervisor until 1992 and second level supervisor until March 1994
(R2); her first level supervisor after 1992 (R3); a male coworker,
Research Geologist, GS-15 (R4); the Human Resource Officer (R5); the
Section Chief of the Earthquake Hazard Section at the Central Region
Office, her second level supervisor as an Associate Branch Chief (R6);
two members of an ad hoc performance appraisal panel that reviewed her
1994 performance rating (R7 and R8); and the Director of the agency's
Office for Equal Opportunity (R9).
Two of appellant's four complaints were consolidated for investigation
and the other two were individually investigated by the agency. When
appellant failed to request an administrative hearing at the completion of
her investigations, the agency issued a consolidated final agency decision
(FAD) on appellant's complaints rejecting six allegations for failure to
state a claim and finding no discrimination with respect to the remaining
26 allegations. The agency acknowledged that appellant had presented a
prima facie case of sex or reprisal discrimination with respect to most of
her numerous allegations, and found that it had articulated legitimate
nondiscriminatory reasons for the agency actions taken with respect
to all incidents, which appellant had failed to prove were pretexts for
retaliation and discrimination.<3> It is from this decision that appellant
now appeals. In her brief on appeal, appellant alleges, inter alia, that
the agency's FAD fails to refute the openly retaliatory animus implicit
in many of her allegations, and that the agency utterly fails to address
the testimony of numerous witnesses who supported her allegation that
she was subjected to an ongoing pattern of retaliation which permeated
all of the agency actions taken against her cited in her complaints.
In her complaints, appellant alleged that she had been subjected to a
long term ongoing pattern of discriminatory and retaliatory events by
agency officials which included, inter alia, the following incidents.
In WGS-94-031, appellant alleged that: in March 1994, R1 tried to
dissuade the Chief of the BELH (selecting official-SO) from selecting
her as an Associate Branch Chief by informing her that appellant had
filed EEO complaints and implying that such complaints should be a
factor in her decision; R2 gave her a low rating in the interpersonal
relations section of a supervisory apprisal for an Associate Branch
Chief position in BGC; she was subsequently not selected in April 1994
for that position; R4 refused to provide commentary for an abstract she
had written and attacked her based on her EEO activity in a memorandum
which he sent to others; R2 and R3 officially condoned the distribution
of this memorandum by telling appellant she got what she asked for; she
was required to expend project funds that were given to R4 to attend
a meeting and was not given the same level of funds for her project;
the BGC failed to offer her the same level of support in analyzing her
data samples that it offered to other researchers; she was not invited
to participate in an ad hoc committee of women scientists formed to look
into the reason for the large number of Central Region EEO complaints;
the Western Region Statistics Task Force withheld statistics from her
concerning their career pattern study and suggested it would be better if
she no longer served as a member based on a rumor of her EEO activity;
on May 9, 1994, R1 informed her that she had not been promoted to a
scientific GS-14 level by a promotion panel; and R1 attempted to force
her to accept a co-investigator on her Winnemucca Surprise Bureau of Land
Management (WSBLM) project when she became an Associate Branch Chief.
In WGS-94-037, appellant alleged that: in violation of a March 23,
1994 five point agreement, she was removed from her position as Project
Chief of the WSBLM geochemical study on July 22, 1994; her access to the
mainframe computer files on the project was withdrawn; and R1 informed
a potential supervisor and fellow employee of her EEO complaints.
In WGS-95-007, appellant alleged that she became aware that her 1992
fully successful performance rating was in the bottom 13 percent of
ratings for the Office of Mineral Resources, although she had been
recommended for promotion to GS-14 by a panel in that year; in May
1994 she received a �fully successful� appraisal from R1 and R3,
which was raised to an �excellent� by an ad hoc panel, but R2 missed
the deadline for officially changing the rating; the ad hoc panel did
not raise the rating as high as appellant wanted it; and, since 1991,
appellant received average performance ratings.
In WGS-95-018, appellant alleged that R1 wrote a retaliatory letter to the
Chief Geologist referencing her EEO activity which noted conversations he
had recently had with her new supervisor for the purpose of discrediting
her and souring that relationship; R1 encouraged the recipient to
distribute copies of the letter to anyone; on December 22, 1994, the
agency allowed at least 32 government employees to attend a hearing on her
case in federal district court, on government time, while requiring her
to use annual leave; and the agency attempted to intimidate her witnesses
by informing some of them on the day before the hearing that they could
not testify as expert witnesses and by informing other witnesses two
days before the hearing that they needed to obtain agency authorization
before they could testify on appellant's behalf.
ANALYSIS AND FINDINGS
Initially, we find that the agency correctly dismissed allegation 16 in
[WGS-94-031], allegation 6 in [WGS-95-007] and allegations 2, 3 and
4 in [WGS-95-018] for failure to state a claim. We find, with respect
to allegation 2 in [WGS-94-031], however, that appellant is rendered
aggrieved by the R1's attempt to dissuade the SO from selecting her for
her Associate Branch Chief position. We find that this allegation was
improperly dismissed because it is part of what we deem to be appellant's
larger allegation of discriminatory and retaliatory harassment.
Allegations 16 and 6 involve the agency's processing of appellant's
underlying complaints and as such can be addressed in the context of
the underlying complaint herein and need not be processed as separate
allegations of employment discrimination. See Kleinman v. USPS, EEOC
Request No. 05940579 (September 22, 1994). In this regard, we have
examined appellant's allegations of agency delays in processing and
misdefinition of one of her allegations and find that the record does
not indicate any basis for a determination that appellant was prejudiced
by any such agency actions or that the agency acted in a discriminatory
manner in processing her complaints. With respect to allegations 2, 3,
and 4, which concern the agency's alleged intimidation in connection
with appellant's court hearing, we note that such an allegation should be
raised in connection with that lawsuit and is not within our jurisdiction
to address herein. However, we do find that the evidence already gathered
on these issues can appropriately be utilized as background evidence in
considering appellant's allegations of a pattern of retaliatory harassment
at the agency.
We will now address appellant's overriding harassment allegation on its
merits herein. In this regard, we find that appellant has amply proven,
based on her own testimony and the testimony of numerous witnesses
gathered during the agency's fact finding investigation, that she has
been subjected to a pattern of harassment based on her participation in
the EEO process.
Appellant may establish a prima facie case of reprisal by showing that:
(1) she engaged in prior EEO activity; (2) the agency was aware that
she engaged in prior EEO activity; (3) she was subsequently adversely
affected by an action of the agency; and (4) the actions in question
followed her prior EEO activity within such a period of time and manner
as to infer reprisal motivation. See Hochstadt v. Worcester Foundation
for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd.,
545 F.2d 222 (1st Cir. 1976).
In the present case, we note that all of the referenced responsible
officials were admittedly aware of appellant's prior EEO activity, which
included a 1980 and November 1993 EEO complaint,<4> at the time they took
the referenced actions. With the exception of appellant's 1991 and 1992
appraisals, the retaliatory incidents began within a short period of time
(3 months) after initiation of her second complaint against R1 and R2,
and continued at a steady pace until January of 1995. These actions,
alone or in combination, were adverse in nature, and when considered in
their entirety based on the testimony discussed below, are sufficient to
establish the patterned and pervasive atmosphere necessary to demonstrate
retaliatory harassment amounting to a hostile work environment. See
McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985). An employer
who creates or tolerates a work environment which is permeated with
"discriminatory intimidation, ridicule, and insult" that is sufficiently
severe or pervasive to alter the conditions of an individuals' employment
and which creates an abusive working environment is in violation of Title
VII. Harris v. Forklift Systems, Inc., 114 S.Ct. 367 (1993) (citing
Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986)). The conduct in
question is evaluated from the standpoint of a reasonable person, taking
into account the particular context in which it occurred, including the
severity and frequency of the conduct, and its effect on the employee's
work performance. We note that since most of the matters at issue herein
involve tangible employment actions by agency supervisors, the decisions
of the U.S. Supreme Court in Burlington Industries Inc. v. Ellerth, 118
S. Ct. 2257 (1998) and Faragher v. City of Boca Raton, 118 S. Ct. 2275
(1998) do not alter the agency's liability for the harassment at issue
herein.
Our careful review of the record has persuaded us that the agency,
through its managers and coworkers, has subjected appellant over a
sustained period of time, to a hostile and retaliatory work environment
that permeated, tainted and motivated each of the cited actions taken
by agency officials towards her. In so ruling, we have considered and
rely upon the following evidence found in the investigative record.
Several coworker witnesses testified to the retaliatory atmosphere
experienced by appellant. Specifically, the Selecting Official (SO) who
chose appellant for an Associate Branch Chief position testified that
R1 informed her of appellant's EEO complaints and also unsuccessfully
suggested that appellant's selection to the position might be utilized
as part of an attempt to settle her pending complaints. The SO further
testified that in her opinion, the agency's treatment of appellant was
shabby and entirely unlike anything she had ever witnessed in her career
at the agency. IE 36, 1075. Several of appellant's colleagues testified
to their belief that agency managers had created a retaliatory work
environment for appellant at the agency based on their animus toward
appellant for filing EEO complaints in which they were involved. These
colleagues also expressed the belief that the adverse employment actions
which ensued during the pendency of appellant's complaints were motivated
by such animus toward appellant.
One colleague who still worked at the agency (C1) stated that appellant
was basically �bad mouthed and run off� by �just about everyone in the
end.� He stated that there were a lot of �jokes, sniping, crafty comments,
lots of chuckling� directed at appellant, some of which involved her
EEO activity, and that it was his impression that appellant �got in a
vicious cycle, kind of like a vortex, and then once she filed the EEO
suit, she was no longer on the project, and then she was RIFed.�IE 34,
1038. This witness also indicated his discomfort at providing such
testimony during the investigation.
A former colleague of appellant's (C2), who had retired from agency
employment at the time of his testimony, averred to the following
as an example of what he deemed to be agency management retaliatory
discrimination against appellant. He described how R2 had �captivated
groups of people standing around with coffee cups in hand discussing the
so-called [appellant] problem and how much the EEO activity was costing
the Branch.� He noted that some of these hallway sessions lasted 15-20
minutes at a time and that R2's face became �strained and flushed� after
several minutes of talking about the EEO activity. He asserted that the
hallway group discussion substantially contributed to a �gang hate,�
mentality about appellant. Finally, he noted that such discussions about
the [appellant] problem were a major topic of conversation frequently
in small groups or offices, resulting in appellant being �prejudged
and convicted by her peers.�IE 54, This colleague also averred that he
witnessed a confrontation between appellant and the custodian of supply
samples which was later used by R1 and R3 to demonstrate appellant's
alleged interpersonal problems. He opined that the custodian had been
disrespectful and rude towards appellant and that R1 and R3 had condoned
this behavior.
Another colleague of appellant's (C3) testified that R2 complained to
her about appellant's EEO complaints costing money and that R3 showed
a basic disrespect for female scientists. She also claimed never to
have noticed that appellant had any difficulties with her interpersonal
skills and testified that �people skills� was �a favorite� reason for
managers to utilize in justifying a retaliatory action such as appellant's
nonselection for the Associate Branch Chief position in BGC, for which
another less qualified candidate was selected. She also testified to the
following about the retaliatory culture of the agency towards individuals
such as appellant who pursued EEO complaints:
Once an EEO complaint is filed, you become an outsider in the
organization. You're not included in things any more. You're shunned,
particularly it happens with project work. Even people who were friendly
to you before and have nothing to do with management are scared to come
in and talk to you once the word circulates because they know you're a
pariah. And, if they associate with you, it will ruin their chances for
advancement in the Survey too. And, that's underscored by the fact that
they RIFFED every single person who had a pending EEO complaint in the
USGS...Everybody is totally scared to speak out unless they've already
been laid off and they've got nothing to lose.
IE 42, 2070-71.
Further evidence of retaliatory animus towards appellant is found in
an August 19, 1994 memo from R1 to the Chief Geologist referencing her
EEO activity in a derogatory manner and stating that �many people feel
[appellant] is abusing the system.� The R1 stated that he understood �the
problems� that [appellant] was causing for appellant's new supervisor
based on conversations held during �a very long lunch� he had with him
recently. IE 93, 2686-2691. The extent of the retaliatory atmosphere
which confronted appellant is best demonstrated by a memorandum to
appellant from R4, which responded to appellant's request for commentary
on an abstract she was working on by stating the following: Your many
allegations of unfair treatment by white males and your often hostile
attitude here in Building 20 prevent honest dialogue. I can only expect
an angry response, or possibly a lawsuit, if I were to offer comments
and suggestions as I would to anyone else in the branch.� In particular,
we note that this memorandum was distributed to appellant's team members
and to R1 and R3. Neither of these officials took any action after this
memorandum was issued, and R2 informed appellant that she had received
the informal discussion of her abstract that she had requested and that
he believed that dissemination of this memorandum to team members was
appropriate.
Witnesses also supported the assessment that appellant had been retaliated
against by agency officials in numerous actions cited by appellant in
her complaint. For example, another coworker alleged that appellant was
purposely denied crucial data support for her project by individuals
who could easily have fulfilled her requests for data processing but
were told by agency managers not to do so. Another witness alleged that
another coworker was preselected for the branch chief position because of
appellant's �interpersonal skills� problem which was clearly related to
her pursuit of her EEO claims. Other witnesses testified that appellant
was purposely excluded from an ad hoc panel formed to look into the
reasons for the number of complaints in the area and was encouraged
to resign from a statistical task force investigating patterns of sex
discrimination in agency hiring based on her status as an EEO complainant.
Moreover, we have also considered, as background evidence, testimony by
numerous witnesses who asserted that they were intimidated by various
actions taken by the agency just prior to a hearing on appellant's
federal district court case. Specifically, they testified that the
agency sent letters to appellant's witnesses one or two days before
the hearing advising them that they did not have approval to testify as
expert witnesses and that they needed to obtain agency advance approval
in order to testify at all on appellant's behalf. These witnesses also
corroborated that the agency allowed approximately 32 employees to attend
the hearing in an attempt to intimidate appellant and her witnesses.
None of these individuals were required to utilize annual leave in order
to attend the hearing, as was appellant.
With respect to appellant's allegations of sex and age discrimination,
our review of the record does not indicate sufficient evidence that the
agency's actions were motivated by these factors. Therefore, we do not
address these bases further herein.
CONCLUSION
Thus, based upon a careful review of the record, and for the foregoing
reasons, the agency's final decision is AFFIRMED in part and REVERSED
in part, as discussed above. The agency is directed to comply with the
Commission's Order set forth below.
ORDER
I. The agency is ORDERED to take the following remedial actions:
(1) The agency shall take whatever actions it deems necessary, including
but not limited to the actions set forth below, to ensure that neither
appellant nor any other employee is subjected to a retaliatory hostile
work environment in the future.
(2) The agency is to review the matter giving rise to this complaint, and
to determine whether disciplinary action against any of the individuals
discussed herein is appropriate. The agency shall record the basis for
its decision to take or not to take such actions, and report the same
to the Commission in the same manner as implementation of the rest of
the Commission decision is reported.
(3) The agency is ORDERED to provide training for all supervisors,
managers and staff in the Branch of Geochemistry of the Geologic Division
in the Central Region of the U.S. Geological Survey, in Lakewood,
Colorado, to fully inform them on the current state of the law regarding
employment discrimination, especially retaliatory harassment and the goals
behind the law requiring equal employment opportunities for all. All
Supervisors and Managers mentioned in this decision shall be required
to attend this training.
(4) Appellant's employment records at the agency shall be purged of any
and all negative references entered therein by R1, R2, R3 and R4. Her
performance appraisals for 1992-1994 shall be reevaluated in light of the
determination herein. Specifically, appellant's 1994 appraisal shall be
upgraded in all elements to the �excellent� level and purged of derogatory
commentary aout her communication skills by R3. Appellant's March 1993
supervisory appraisal completed by R2 shall be upgraded in the area
of interpersonal skills to the same level as the other elements of the
appraisal. To the extent that appellant would have qualified to receive a
monetary award as a result of the upgraded appraisal(s), the agency shall
include such monetary award(s) in the back pay amount ordered below.
(5) The agency is ORDERED to post the attached notice, as described below.
(6) Unless otherwise specified, the agency shall accomplish each of
the above actions within sixty (60) days of the date this decision
becomes final.
(7) The agency shall conduct a supplemental investigation pertaining
to appellant's entitlement to compensatory damages.<5> The agency
shall afford appellant sixty (60) days to submit evidence in support
of her claim for compensatory damages.<6> Within thirty (30) days of
its receipt of appellant's evidence, the agency shall issue a final
decision determining appellant's entitlement to compensatory damages,
together with appropriate appeal rights. A copy of the final decision
must be submitted to the Compliance Officer, as referenced below.
(8) The agency shall restore all pay and/or benefits lost as a result
of the agency's discriminatory actions taken herein (her nonselection
for the GS-14 Associate Branch Chief position in BGC in April 1994, her
failure to attain promotion to the scientific GS-14 level in May 1994,
and any awards she would have received absent discrimination). The agency
shall determine the appropriate amount of backpay with interest and other
benefits due appellant, pursuant to 29 C.F.R. �1614.501, no later than
sixty (60) calendar days after the date this decision becomes final.
The appellant shall cooperate in the agency's efforts to compute the
amount of backpay, interest, and benefits due, and shall provide all
relevant information requested by the agency. If there is a dispute
regarding the exact amount of backpay and/or benefits, the agency shall
issue a check to the appellant for the undisputed amount within sixty (60)
calendar days of the date the agency determines the amount it believes
to be due. The appellant may petition for enforcement or clarification
of the amount in dispute. The petition for clarification or enforcement
must be filed with the Compliance Officer, at the address referenced in
the statement entitled "Implementation of the Commission's Decision." The
agency is further directed to submit a report of compliance, as provided
in the statement entitled "Implementation of the Commission's Decision."
The report shall include supporting documentation of the agency's
calculation of backpay and other benefits due appellant, including
evidence that the corrective action has been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post, in a conspicuous place at the Branch
of Geochemistry, of the Geologic Division in the Central Region of the
U.S. Geological Survey, in Lakewood, Colorado, 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 (H1092)
If appellant 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 (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark,
the request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. ��791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
October 28, 1999
__________________ _______________________________
DATE Frances M. Hart
Executive Officer
Executive Secretariat
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated which found that
a violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq., has occurred at this facility.
Federal law requires that there be no discrimination against any
employee or applicant for employment because of the person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions or privileges of employment.
The Branch of Geochemistry, of the Geologic Division in the Central
Region of the U.S. Geological Survey (USGS), Lakewood, Colorado facility
supports and will comply with such Federal law and will not take action
against individuals because they have exercised their rights under law.
The USGS has been found to have engaged in retaliatory harassment of one
of its employees. As a result, the agency has been ordered to upgrade
the employee's appraisals, purge her Office Personnel Folder of any
derogatory information, and afford her backpay and interest. Further,
the agency has been ordered to consider disciplinary action, provide
training to the responsible management officials and to conduct a
supplemental investigation into the employee's claim of compensatory
damages. The USGS will ensure that officials responsible for personnel
decisions and terms and conditions of employment will abide by the
requirements of all Federal equal employment opportunity laws and will
not retaliate against employees who file EEO complaints.
The USGS will not in any manner restrain, interfere, coerce, or
retaliate against any individual who exercises his or her right to
oppose practices made unlawful by, or who participates in proceedings
pursuant to, Federal equal employment opportunity law.
Date Posted:
Posting Expires:
29 C.F.R. Part 16141Appellant's claim that her performance appraisals
since 1991 reflected discrimination and reprisal is the sole allegation
which encompasses earlier dates.
2In Dawn J. McGuire v. Dept. of the Interior, EEOC Petition No. 03980080
(August 26, 1998), the Office of Federal Operations concurred with
the decision of the Merit Systems Protection Board which found no
discrimination in the RIF.
3The complete text of these detailed allegations as well as the agency's
legitimate nondiscriminatory reasons for the actions taken are set
forth in the agency's FAD and will not be repeated herein.
4The agency also referenced, in referring to appellant's prior EEO
activity in its FAD, the year 1980. During the investigation, appellant
asserted that she filed a previous EEO complaint in 1980 after being
nonselected for a research position at the agency.
5We note that appellant has specifically indicated on several occasions
throughout the processing of her complaint, that she intends to claim
compensatory damages. Therefore, we will remand this matter in part to
allow appellant to produce evidence to demonstrate that such an award
is warranted and to justify the amount of any such award.
6The Commission has found that where a complainant has made a claim for
compensatory damages, the agency should request that the complainant
provide objective evidence of the alleged damages. See, e.g., Carle
v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993);
Benton v. Department of Defense, EEOC Appeal No. 01932422 (December
10, 1993).