Deborah A. Lombardino, Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture, (Farm Service Agency), Agency.

Equal Employment Opportunity CommissionNov 27, 2009
0720070007 (E.E.O.C. Nov. 27, 2009)

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