0720070007
11-27-2009
Deborah A. Lombardino, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, (Farm Service Agency), Agency.
Deborah A. Lombardino,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
(Farm Service Agency),
Agency.
Appeal No. 0720070007
Hearing No. 100-2003-07183X
Agency Nos. FSA-CF-2001-01711 (formerly 020206),
FSA-CF-2003-01614 (formerly 030239),
FSA-CF-2002-01594 (formerly 030187),
FSA-CF-2003-01615 (formerly (030680),
FSA-CF-2003-030470 (formerly 030470)
DECISION
Concurrently with its final order of October 26, 2006, 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 rejection of an EEOC Administrative Judge's (AJ) findings of
discrimination in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq. The agency also requests that
the Commission affirm its rejection of the relief ordered by the AJ.
On November 22, 2006, complainant timely filed her cross-appeal to the
agency's rejection of the AJ decision, and her appeal of the AJ's findings
of no discrimination. For the purposes of administrative economy the two
appeals have been consolidated for consideration in the instant decision.
For the following reasons, the Commission MODIFIES the agency's final
order.
ISSUES PRESENTED
The issues presented are whether the AJ's decision is supported by
substantial evidence in the record, and whether his order of relief was
proper.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Supervisory Equal Employment Specialist, GS-14, at the agency's
Farm Service Agency (FSA), Office of Civil Rights, EEO Counseling and
Mediation Branch, in Washington, DC.
On January 15, 2002, complainant filed an EEO complaint, Agency
No. FSA-CF-2001-01711 (formerly 020206) (complaint #1) alleging that she
was discriminated against on the bases of race (white), color (white),
sex (female), and in reprisal for prior protected EEO activity arising
under Title VII when, on August 23, 2001, she learned that she was not
selected for the position of Director, Civil Rights and Small Business
Utilization Staff, at FSA, under vacancy announcement #F1-FSA-149 (a
temporary, one-year position).
On October 28, 2002, complainant filed Agency No. FSA-CF-2002-01594
(formerly 030187) (complaint #2) alleging that she was discriminated
against on the bases of race (white), color (white), sex (female), and
in reprisal for prior protected EEO activity arising under Title VII
when she was subjected to a hostile working environment between 2000
and 2002, when, among other incidents: she was denied an opportunity
to serve as Acting Director; she was denied the opportunity to travel
to Hawaii to conduct and assist with EEO training; she was verbally
chastised by her supervisor in front of peers and staff; she received
short notification of a two-day Branch Chief meeting in Washington, DC;
her supervisor was non-supportive, uncooperative and failed to respond
to complainant's administrative requests and e-mails.
On January 24, 2003, complainant filed Agency No. FSA-CF-2003-01614
(formerly 030239) (complaint #3) alleging that she was discriminated
against on the bases of race (white), color (white), and in reprisal for
prior protected EEO activity arising under Title VII when on November
13, 2002, she was notified that she was not selected for the position of
Director, Civil Rights and Small Business Utilization Staff, at FSA, under
vacancy announcement # F2-FSA-128. This was the vacancy announcement
to fill the position at issue in complaint #1 on a permanent basis.
On June 18, 2003 and September 13, 2003, complainant filed Agency
No. FSA-CF-2003-01615 (formerly 030680) (complaint #4) alleging that she
was discriminated against on the bases of race (white), color (white),
and in reprisal for prior protected EEO activity arising under Title
VII when she was subjected to nonsexual harassment between March 2003
and September 2003, when, among other incidents: her work was scrutinized
more closely; a full-time employee (FTE) was removed from her supervision;
her request to work compensatory time was denied; she was given a letter
of caution; and she was asked to provide documentation that would justify
her use of external consultant EEO counseling services in the informal
complaint filed against her.
On June 18, 2003, complainant filed Agency No. FSA-CF-2003-030470
(formerly 030470) (complaint #5) alleging that she was discriminated
against on the bases of race (white), color (white), sex (female),
and in reprisal for prior protected EEO activity arising under Title
VII when on or about March 21, 2003, she was not selected for the
position of Director, Civil Rights Division, GS-260-15, under vacancy
announcement # W-OD-CRD-2003-0005. This position was located with the
agency's Food Safety and Inspection Service, a separate sub-agency from
where complainant worked.
At the conclusion of the investigations, complainant was provided with
copies of the reports of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested hearings, and her five complaints were consolidated at the
hearing stage for joint processing.
The AJ held a hearing on August 29, August 31 through September 2, and
September 7, 2005. He reconvened the parties for a hearing on damages
on June 9, 2006. The AJ issued a comprehensive, 137-page decision on
September 11, 2006, in which he found that the agency discriminated
against complainant on the basis of reprisal when she was not selected
for the position of FSA's Civil Rights Director, which was a one year
term position (complaint #1). The selecting official (SO) was the FSA
Administrator. The AJ found that complainant had established prima facie
cases of race, color, sex and reprisal discrimination, and that the agency
put forth a legitimate nondiscriminatory reason for selecting the selectee
(selectee #1, black, male, no EEO activity), i.e., he was better qualified
for the position. The AJ made specific credibility findings as to many
of the witnesses, but especially with regard to the testimony of SO,
and found that SO's reasons for selecting selectee #1 were pretextual
and that SO was motivated by retaliatory animus. The AJ found that
complainant had shown that retaliatory animus was a motivating factor
for her non-selection, noting that there was credible testimony from
witnesses that she was regarded by SO and another management officials
as a "trouble-maker," a "frequent filer," and was not a team player.
The AJ did not find that complainant had been discriminated against on
the bases of race, color, or sex.
With respect to complaint #2, the AJ discussed at length the complainant's
allegations delineating the hostile work environment in which she claimed
she worked, as created primarily by selectee #1 from complaint #1.
The AJ concluded that complainant had failed to establish that the
allegedly harassing actions were motivated by her race, color, sex, or
prior EEO activity, and that the incidents were not sufficiently severe
or pervasive such as to create a hostile work environment. The AJ noted
that there was a "plethora of evidence" to suggest that the office was
"dysfunctional, that personality conflicts and disharmony between and
among staff and branch chiefs was prevalent, and that poor management as
well as perceptions of favoritism caused by the appearance of favoritism
based on race, color, gender and possibly retaliation was the root
of much conflict." Additionally, the AJ concluded that complainant
herself contributed to the problems in the office "based on her abrasive
management style, openly hostile treatment of her colleagues and her
supervisor, and her apparent hypersensitivity to every petty slight
or action taken by her colleagues or supervisor." The AJ based his
conclusions on the evidence and the testimony introduced at hearing,
relying on his many credibility findings when assessing the weight to
grant to each witness's testimony.
In adjudicating complaint #3, complainant's non-selection for the
permanent position of Director, Civil Rights and Small Business
Utilization Staff, the AJ found that complainant had established prima
facie cases of race, color and reprisal discrimination in that the
selectee (selectee #2, black, female) was not a member of her protected
classes, and SO was also the selecting official in this selection, and
was clearly aware of complainant's prior EEO activity. The agency put
forth a legitimate, nondiscriminatory reason for choosing selectee #2,
namely that selectee #2 was the superior candidate, having 13 years of
leadership experience in the civil rights and EEO forum, and that she
had served as a GS-15 at a different agency.
In his discussion of whether complainant had shown the agency's reasons
to be pretext, the AJ concluded that the agency had considered both
permissible business reasons, and impermissible considerations of
complainant's EEO activity, in its decision to choose selectee #2.
Using a mixed motive analysis, the AJ found that although the agency was
motivated by legitimate and illegitimate motives, it would have taken
the same action in the absence of the illegitimate motivating factor.
The agency, according to the AJ, was looking for a candidate that would
be able to correct the "numerous problems festering" in the office,
someone with strong leadership skills, and who was not a part of the
current dysfunction. However, the AJ, for the reasons noted above,
found that complainant established retaliatory animus in that there was
credible testimony from witnesses regarding how she was regarded by SO
and another management official because of her EEO activity. The AJ's
finding that the agency would have made the same selection decision even
absent retaliatory animus, however, limited its liability. The AJ also
found that complainant had not been discriminated against on the bases
of her race and color.
With respect to complaint #4, complainant's claim of harassment between
March 2003 and September 2003 as created by selectee #2, the AJ concluded
that complainant had established the first two elements of her harassment
claim, namely that she was a member of several protected classes and that
the treatment of her was unwelcome. He found however, that complainant
had not shown that the treatment was motivated by her membership in a
protected class or that it was sufficiently severe or pervasive so as
to create a hostile work environment. According to the AJ's assessment
of the testimony, the office atmosphere under selectee #2 became "even
more acrimonious" than it was under selectee #1, and that there was
an "obvious personality clash" between complainant and selectee #2.
The AJ discussed at length the workplace atmosphere, complainant's
relationship with many of her co-workers, superiors and subordinates,
and complainant's contribution to the creation of the poor state of
those relationships. He assessed the credibility of the witnesses,
and the behavior of each at hearing, in order to paint a full picture
of the workings of the office.
Finally, regarding complaint #5, the AJ found that complainant was
not discriminated against on any of her alleged bases when she was not
selected for a Civil Rights Director position in the agency's Food Safety
and Inspection Service, a different sub-agency from where complainant's
other four complaints arose. The selectee for the position happened to
be the same selectee from complaint #1, namely selectee #1 (black, male).
The AJ found that complainant had established prima facie cases of race,
color, sex, and reprisal discrimination, and that the agency articulated
a legitimate, nondiscriminatory reason for choosing selectee #1.
The selecting official in this case (SO-2) testified that when he came
to the agency, the process for filling the position was underway, a
panel had rated and ranked the candidates, and had interviewed them.
The panel referred four candidates to SO-2, with selectee #1 ranked
first and complainant ranked second. SO-2 testified that he met with
the top two candidates, was equally impressed with both, and decided to
go with the recommendation of the panel. The AJ found that complainant
had not shown that SO-2 harbored any animus, nor that the panel itself
acted for discriminatory reasons. He concluded that complainant had
not shown herself to be plainly superior to selectee #1. Therefore,
complainant did not prevail on complaint #5.
Following a hearing on damages and the submission of evidence, the
AJ awarded the following remedies to complainant. Complainant was
awarded priority placement, for the period of one year, in the next
vacant Director of Civil Rights position at the GS-15 level within the
agency as a whole, that would be substantially equivalent to that of
a Director of Civil Rights at FSA. He declined to "bump" the current
holder of that position at FSA, "an innocent third party" who entered the
position after selectee #2 had departed. Assuming complainant had not
been placed in a permanent GS-15 position by the end of that year, the
agency was ordered to return her to her current Branch Chief position or
the substantially equivalent position in the event the FSA Civil Rights
Office was restructured. The agency was also ordered to calculate the
appropriate amount of back pay and benefits due complainant for the
GS-15 position.
The AJ declined to award complainant a permanent promotion to GS-15,
which complainant had argued she was entitled to based on selectee #1
becoming a GS-15. Complainant also argued that because selectee #1 had
attended Senior Executive Service Training at the agency's expense, and
received a $2,500.00 cash award, she was entitled to these benefits as
well. The AJ disagreed and found she had not shown she was entitled to
these benefits, and that they were not the inevitable outcome of selectee
#1's temporary placement in the GS-15 Director position. Due to the
mixed motive finding in complaint #3, the AJ did not award the Director,
Civil Rights position in FSA on a permanent basis to complainant.
Complainant was awarded $15.00 in pecuniary damages for costs associated
with a physician visit, and $12,000.00 in non-pecuniary compensatory
damages in connection with her non-selection for the temporary one-year
promotion. Complainant was represented by an attorney throughout the
proceedings and was awarded $133,247.95 in attorney's fees and $1,996.52
in costs. The AJ applied a 25% reduction to the hours claimed and a 30%
across the board reduction based on the degree of success to the total
fees requested.
Additionally, the AJ recommended that the agency consider discipline for
SO, and ordered that SO be required to undergo four hours of EEO training.
He also required that the agency post a notice informing employees at
complainant's work location of the finding of discrimination.
The agency subsequently issued a final order rejecting the AJ's finding
that complainant proved that she was subjected to discrimination as
alleged. It implemented the AJ's finding of no discrimination on her
other claims. The agency timely filed its appeal to the AJ's decision,
and complainant filed a cross-appeal to the agency's non-implementation
of the findings of discrimination, and an appeal to the AJ's findings
regarding her claims where discrimination was not found.
CONTENTIONS ON APPEAL
In its brief on appeal, the agency, in pertinent part, argued
that complainant had not established a prima facie case of reprisal
discrimination in that she had not established a nexus between her prior
EEO activity, and had not shown that SO knew of her prior EEO activity.
The agency disputed the AJ's reliance on the testimony of a witness
(witness #1) after finding him to be a more reliable witness than others
who testified. The AJ based his finding that SO knew of complainant's
EEO activity on witness #1's testimony. The agency also argued that the
AJ's own finding that complainant had "poor leadership and management
skills" should have kept the AJ from making a finding that the agency's
reasons for not selecting complainant as Director, Civil Rights, with
respect to both the temporary and the permanent positions, were pretext
for discrimination.
The agency also contested the remedy awarded complainant, and argued
that it would have a substantial impact on the operations of the agency
to place complainant in a Director position for one year, given her
"poor leadership and management skills." It further disputed the
AJ's calculation of the attorney's fees awarded, and called the award
"improper and an abuse of discretion." The agency claimed the attorney
had not properly documented his hours, that the determination of the
hourly fee rate was faulty and that the AJ's across-the-board reduction
was not enough of a reduction. Additionally, the agency argued that the
contract attorneys, complainant's attorney utilized, were reimbursed at
too high a rate based on their levels of experience.
Complainant, in her reply brief, and her brief in support of her cross
appeal, argued that the agency's appeal should be denied (specifically
refuting the points made in the agency's brief), and that the AJ should
have made findings in her favor for complaints #1 and #3 on the bases of
race and color. She also asserted that the compensatory damages award
was too low, and should be increased to $50,000.00 or more. She also
maintained that her attorney's fees request should not have been reduced
from the $259,608.26 requested. She also claimed that her request for
attorney's fees for the work performed by her prior attorney, in the
amount of $10,209.60, should not have been denied in its entirety and
that the AJ's findings of no discrimination with respect to complaint's
#2, #4, and #5 were in error. Finally, she requested attorney's fees
be awarded for the work done in response to the agency's appeal.
The agency submitted a reply to complainant's brief in support
of her cross appeal, in which it reiterated arguments made in its
brief and refuted complainant's arguments. It posited that should the
Commission affirm the AJ's findings of discrimination, the amount of the
non-pecuniary compensatory damages award, $12,000.00, should be affirmed,
and the attorney's fees award should not be increased.
ANALYSIS AND FINDINGS
The AJ's decision on the merits of complainant's complaints
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).
As noted before, the AJ issued a 137-page decision which encompassed a
full delineation of complainant's claims, the testimony at hearing, the
evidence in the record, his factual findings, and many well-supported
credibility determinations. The AJ's findings are supported by
substantial evidence in the record. The Commission notes that the
AJ's description of the workplace atmosphere and relationships among
the involved individuals is detailed enough to paint for the reader
a clear picture of what occurred during the relevant time period.
Additionally, the AJ's very meticulous credibility determinations, which
considered demeanor, tone of testimony, eye contact and body language,
among other factors, were well rendered and shall not be second guessed
on appeal. See, e.g., U.S. v. Smith, 576 F.3d 681 (7th Cir. 2009)
("The reasons for this deference are many: the trial judge 'has had
the best opportunity to observe the verbal and nonverbal behavior of
the witnesses focusing on the subject's reactions and responses to the
interrogatories, their facial expressions, attitudes, tone of voice,
eye contact, posture and body movements, as well as confused or nervous
speech patterns in contrast with merely looking at the cold pages of
an appellate record.'" (internal citation omitted)). See also Grant
v. Department of the Treasury, EEOC Appeal No. 01985972 (August 2, 2001).
Although the agency argued that witness #1's testimony should not
have been given such weight in the AJ's determination that SO knew of
complainant's prior EEO activity, we find that it was not contradicted
by documents or other objective evidence, nor does the agency point
to such evidence in the record. Instead the agency merely argued that
other witnesses were more credible or contradicted witness #1. We shall
not disturb the AJ's determination of the relative credibility of the
witnesses in this regard. As such, we find that the AJ's determination
that complainant established a prima facie case of reprisal discrimination
is supported by substantial evidence in the record and the testimony
given at hearing, and supports his ultimate findings of discrimination
on the basis of reprisal for complaints #1 and #3.
Regarding the agency's argument that complainant's relative leadership
and management skills should have prevented the AJ from making a finding
of discrimination in complaint #3, we note that the AJ engaged in a very
careful mixed motive analysis. He found that the agency had legitimate
reasons for not selecting complainant for the position, such as her
strengths and weaknesses as a manager. However, he also found that
the agency had considered impermissible factors, namely SO's attitude
toward complainant's EEO activity, and the AJ properly applied the mixed
motive analysis in order to determine that the agency would have made
the same decision, even absent the discrimination. The AJ therefore
limited the agency's liability for complaint #3. We shall not disturb
the AJ's findings and analysis in this regard and affirm his finding of
discrimination on the basis of reprisal in complaint #3.
With respect to complainant's arguments that the AJ's decision did not go
far enough, and he should have made findings in her favor on all bases
for all five complaints, we find that the AJ's decision, as discussed
more fully above, is supported by substantial evidence on these matters,
and we affirm his determinations on appeal.
The AJ's decision on the remedies awarded complainant
While the agency argued at length that complainant should not be placed
in the Director, Civil Rights position, even for the temporary period of
one year, we find that their argument is without merit. The AJ narrowly
tailored his order to place complainant in a GS-15 Director position
for one year only, in a vacant position, rather than displacing the
current occupant of the Director position at FSA. He gave the agency
the option of placing complainant in such position in any sub-agency
within the agency. While the agency focused on the AJ's assessment that
complainant had poor leadership and management skills, we do not find that
it changes his determination that she was denied a position, in part,
for discriminatory reasons. Accordingly, we find no legal basis not to
place complainant in this position, and we decline to reverse the AJ's
order in this regard.
The award of compensatory damages in the amount of $12,000.00 is affirmed.
The AJ found that complainant had shown that following the non-selection
of complaint #1, she experienced feelings of being shocked and stunned,
and subsequently felt nervous, anxious, worried, depressed and had some
trouble sleeping. She also had diminished participation in social events,
testified that her reputation was impacted, and she experienced stress
and distress. We note that this award is comparable to other awards of
compensatory damages made by the Commission for similar cases. See Gibson
v. Department of Homeland Security, EEOC Appeal No. 0720060079 (December
8, 2008) (award of $12,500.00 in compensatory damages when complainant
experienced feelings of paranoia, felt threatened and depressed, could
not sleep, could not eat, and could not have marital relations); Almera
v. Department of Veterans Affairs, EEOC Appeal No. 01A13618 (January 30,
2002) ($12,000.00 in non-pecuniary damages awarded where discriminatory
non-selection caused complainant to experience humiliation, anxiety,
headaches, sleeplessness, and a loss of appetite).
The attorney's fees award is also affirmed. 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. Bernard
v. Department of Veterans Affairs, EEOC Appeal No. 01966861 (July 17,
1998). Attorney's fees are computed by determining the lodestar, i.e.,
the number of hours reasonably expended multiplied by a reasonable
hourly rate. 29 C.F.R. � 1614.501(e)(2)(ii)(B); Equal Employment
Opportunity Commission Management Directive (MD) 110 at 11-5 (citing
Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). All hours reasonably
spent in processing the complaint are compensable, and the number of hours
should not include excessive, redundant or otherwise unnecessary hours. MD
110 at 11-5 (citing Hensley, 461 U.S. at 434; and Bernard, EEOC Appeal
No. 01966861). A reasonable hourly rate is based on prevailing market
rates in the relevant community for attorneys of similar experience in
similar cases. MD-110 at 11-6 (citing Cooley v. Department of Veterans
Affairs, EEOC Request No. 05960748 (July 30, 1998)).
Complainant's attorney initially requested a total of $259,608.26 in
attorney's fees. The fees encompassed work performed by her current
attorney, two contract attorneys he hired, a law clerk, and her
prior attorney. The AJ examined the fee petition of complainant's
attorney, with all supporting documentation, as well the agency's
objections to the petition at the hearings stage. He determined that
the complainant's attorney had requested payment at a reasonable hourly
rate, based on his use of the Laffey matrix, which was created by the
United States Department of Justice, U.S. Attorney's Office for the
District of Columbia, and is used to calculate reasonable hourly rates
of attorneys and paralegals in the D.C. area. The AJ reduced the number
of compensable hours by 25%, and made a 30% across-the-board reduction
based on complainant's degree of success. The AJ also examined the
fees requested for the contract attorneys and the law clerk, and made
appropriate determinations of the amount to which they would be entitled.
The AJ concluded that complainant's prior attorney had not provided
a proper fee petition and as such, he denied any reimbursement for
that fee, which was in the amount of $10,209.60. The total amount of
attorney's fees the AJ awarded was $133,247.95, and $1,996.52 in costs.
We will not disturb the award as calculated by the AJ.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we therefore AFFIRM
the agency's decision to implement the AJ's decision with respect to his
findings of no discrimination, and REVERSE the agency's decision not to
implement the AJ's findings of reprisal discrimination for complaints
#1 and #3.
ORDER
Within sixty (60) days of the date this decision becomes final:
1. The agency shall place complainant in the next vacant Director of
Civil Rights position at the GS-15 level within the agency as a whole,
that would be substantially equivalent to that of a Director of Civil
Rights at FSA, for the period of one year.
2. The agency shall determine the appropriate amount of back pay, with
interest, and other benefits due complainant since for the year she would
have spent at the GS-15 position, pursuant to 29 C.F.R. �1614.501, no
later than sixty (60) calendar days after the date this decision becomes
final. The complainant shall cooperate in the agency's efforts to compute
the amount of back pay and benefits due, and shall provide all relevant
information requested by the agency. If there is a dispute regarding the
exact amount of back pay and/or benefits, the agency shall issue a check
to the complainant for the undisputed amount within sixty (60) calendar
days of the date the agency determines the amount it believes to be due.
The complainant 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."
3. The agency shall pay $15.00 in pecuniary damages for costs associated
with a physician visit.
4. The agency shall pay $12,000.00 in non-pecuniary compensatory
damages in connection with her non-selection for the temporary one-year
promotion.
5. The agency shall pay $133,247.95 in attorney's fees, and $1,996.52
in costs.
6. The agency shall 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).
7. The agency shall provide four (4) training to the involved management
officials regarding their responsibilities under EEO laws. In the event
that the involved management officials have left the agency, the agency
shall furnish documentation of their departure date.
8. The agency shall post a notice in accordance with the paragraph below.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its agency Headquarters 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 (R0408)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, you must name as the defendant
in the complaint the person who is the official agency head or department
head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (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
_____11/27/09_____________
Date
2
0720070007
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
13
0720070007