Joel Rodriguez, Complainant,v.Steven Chu, Secretary, Department of Energy (National Nuclear Security Administration), Agency.

Equal Employment Opportunity CommissionMar 6, 2009
2H_rodriguez_0120071173_-_0120072378 (E.E.O.C. Mar. 6, 2009)

2H_rodriguez_0120071173_-_0120072378

03-06-2009

Joel Rodriguez, Complainant, v. Steven Chu, Secretary, Department of Energy (National Nuclear Security Administration), Agency.


Joel Rodriguez,

Complainant,

v.

Steven Chu,

Secretary,

Department of Energy

(National Nuclear Security Administration),

Agency.

Appeal Nos. 0120071173 & 0120072378

Agency Nos. 05-5413-AL, 06-0063-AL & 06-0086-AL

DECISION

On December 26, 2006, complainant filed an appeal from the agency's

December 5, 2006, final decision concerning his equal employment

opportunity (EEO) complaint alleging employment discrimination in

violation of Title VII of the Civil Rights Act of 1964 (Title VII), as

amended, 42 U.S.C. � 2000e et seq. On April 20, 2007, complainant filed

another appeal on an agency decision dated March 23, 2007 concerning

another EEO complaint alleging discrimination in violation of Title VII.

The two appeals are deemed timely and are accepted pursuant to 29 C.F.R. �

1614.405(a). They are also consolidated for joint processing pursuant

to 29 C.F.R. � 1614.606. For the following reasons, the Commission

AFFIRMS in part and REVERSES in part the agency's final decisions.

BACKGROUND

Appeal No. 0120071137 (Agency No. 05-5413-AL)

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

worked as an Acting Physical Fitness Training/Intermediate Use of Force

(PT/IUF) Course Manager, Agent Candidate Training (ACT), at the agency's

Office of Secure Transportation facility in Chafee, Arkansas. On March

3, 2005, as part of his training duties, complainant required agent

candidates to complete an obstacle course. A male trainee, who had

finished the course, shouted out to a female trainee, who was nearing

completion, "Come on [female trainee's name], you can do it.... Come on,

babe [or baby], you can do it." Complainant, as the instructor, found

this language inappropriate, called the two trainees to his office,

and in the presence of another instructor, told them that he knew they

had a "working relationship" and that it was inappropriate for them to

call each other by their first names or to use words such as "babe" or

"baby" in referring to one another.

Upset after the meeting, the two trainees met with other management

officials to complain about the incident. They were offended at

complainant's insinuations of having an inappropriate relationship.

They told management that they wished to file an internal complaint

against complainant. When the Branch Chief (BT), complainant's first line

supervisor as of November 2004, learned of the complaint, he met with the

trainees and complainant. Complainant explained that he did not intend

to imply that an improper relationship existed between the trainees and he

apologized to them for any misunderstanding. After continued discussions

with BT about the incident, complainant felt BT was being antagonistic and

that he had "put the students up" against him. In a later meeting with

the ACT Director (CI), complainant's second line supervisor, BT brought

forth a document entitled Memo for Record in which he had listed some

forty performance/behavioral problems that complainant displayed since

January 2005 and which included incidents unrelated to the March 3rd

incident with the students. As a result of the meeting, CI relieved

complainant of his ACT duties and assigned him to special projects

pending the outcome of an investigation of the students' complaint.

On March 21, 2005, the investigation concluded that the students were

justified in filing a complaint about the March 3rd incident because,

although complainant's statements to them were open to interpretation,

he went beyond his role as PT/IUF instructor when he attempted to counsel

the students on a personal matter. The investigation further found that

CI's removal of complainant was appropriate, that the students felt

appropriately vindicated, and that complainant's reinstatement "would

have an adverse impact to the morale of the students." The investigation

also noted that a "strained supervisor/employee relationship" existed

between complainant and BT.

On April 7, 2005, BT rescinded complainant's temporary promotion to the

GS-13 grade. A memorandum that accompanied the action stated that the

rescission was necessary because complainant had: (1) failed to follow

directions; (2) abused his power; (3) engaged in deceptive behavior;

(4) exhibited program deficiencies; and (5) created an atmosphere

of hostility and distrust and failed to follow proper practice which

adversely affected the ACT program.

In a memorandum dated April 8, 2005, BT informed the Human Reliability

Program (HRP) Manager that he had removed complainant that very day from

HRP (training) duties and was referring the matter to him so that the

Manager could determine whether complainant was suitable for the program.

BT pointed out that complainant's removal was an interim, precautionary

measure, but that the action was justified because complainant had (1)

engaged in deceitful or delinquent behavior, (2) performed his assigned

duties irresponsibly, and (3) violated safety or security procedures.

BT substantiated each accusation with a list of specific incidents.

BT later proposed that complainant be suspended for seven days on the

basis of the three charges. CI, however, found that only one charge

was sustainable and reduced the suspension to two days.

Complainant eventually returned to the ACT program, but not as

an instructor. In a memorandum dated August 25, 2005, BT informed

complainant that he would have no further involvement in the ACT program,

that he would be required to work in an area that had minimum interaction

with ACT staff, and that he would no longer have access to classified

or sensitive information. CI concurred with complainant's removal as

ACT instructor to "alleviate the students' concerns...[and] to spare

[complainant] any potential embarrassment." However, complainant was

subsequently placed in an office without proper equipment to carry out his

new tasks. Complainant also claims that his name tag was unjustifiably

removed from his mailbox and locker.

On June 8, 2005, complainant filed an EEO complaint against the Director

of the National Nuclear Security Administration Service Center in

Albuquerque, New Mexico (SC), BT, who, as mentioned above, had become his

first line supervisor in November 2004 and with whom complainant had a

long, tension-filled working relationship, and against CI, complainant's

second line supervisor. Complainant alleged that he was discriminated

against on the bases of race (Hispanic)1, national origin (Hispanic),

color (dark brown), and in reprisal for prior protected EEO activity

(arising under Title VII) when:

1. He was removed from the ACT program;

2. He was suspended from the HRP;

3. His temporary promotion to the GS-13 grade was rescinded;

4. He was exposed to third party sexual harassment;

5. His duties/responsibilities were removed;

6. His name was removed from his mailbox and locker;

7. He was directed to work in an office without proper equipment;

8. He was verbally harassed regarding his character, reputation, and

job performance, and

9. He was notified that he would be suspended for two days.

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and notice of his right to request a

hearing before an EEOC Administrative Judge (AJ). Complainant elected

to have the agency issue a final decision. On May 2, 2006, the agency

issued a partial final decision finding that complainant was discriminated

against on the bases of race, color, national origin, and in retaliation

for prior protected activity with respect to claims 1, 5, 7, and 9.

The agency agreed to take the following remedial action: (1) expunge from

complainant's personnel file any reference to the two-day suspension; (2)

expunge from complainant's personnel file records related to complainant's

removal from the ACT training program; (3) post a copy of the notice of

discrimination in a conspicuous place at the facility where complainant

worked, and (4) submit all managers and supervisors in the ACT program

at Fort Chafee to at least eight hours of equal employment and diversity

training. The agency found no discrimination regarding claims 3, 4, 6,

and 8. It remanded claim 2 for further investigation because there was

insufficient evidence on which to make a decision.

On December 5, 2006, after a supplemental investigation, the agency issued

another final decision on claim 2. The agency concluded that the claim

comprised a mixed motive case as there were both legitimate and unlawful

reasons for suspending complainant from HRP duties. According to the

agency, the suspension was due in part to the fact that complainant stated

that someone should "call 911 for assistance with mishaps that are going

to take place," and because on another occasion, he made a statement

about "mass casualties" in referring to agent candidates. Given the

potentially violent nature of these statements, the agency determined that

complainant's removal was proper, particularly as complainant previously

had engaged in an aggressive verbal altercation with a co-worker.

In the remedies section of the decision and specifically addressing

the finding of discrimination with regard to claims 1, 5, 7, and 9,

the agency noted that although it had afforded complainant 30 days to

provide the agency evidence of the damages he suffered, he never did so.

The agency therefore did not award him any damages for those claims.

As the agency found that the remaining issue - the suspension from the

HRP program - was a mixed motive case, the agency found that complainant

was entitled to damages and costs, but not reinstatement into HRP.2

Appeal No. 0120072378 (Agency Nos. 06-0063-AL & 06-0086-AL)

On May 1, 2006, complainant filed another EEO complaint (no. 06-0063-AL)

alleging race (Hispanic), national origin (Hispanic), and retaliation

discrimination. On July 14, 2006, he filed yet another complaint

(no. 06-0086-AL) on the same bases. In complaint no. 06-0063-AL, he

raised seventeen allegations, eight of which were dismissed on procedural

grounds. In complaint 06-0086-AL, he raised seven allegations: three

were accepted for processing and the remaining four were dismissed.

The agency consolidated the complaints and investigated the issues.

Upon completion of the investigation, complainant elected a final agency

decision, which was issued on March 23, 2007.

At the time complainant filed these complaints and following the events

of the earlier complaint, the agency employed complainant as a Training

Specialist in the Office of Secure Transportation, Training and Logistics

Command in Chafee, Arkansas. As his HRP duties had been rescinded,

he was placed on administrative leave on July 26, 2006, pending the

outcome of an agency hearing on the revocation of his HRP certification.

In complaint No. 06-0063-AL, complainant alleged the following:

10. BT did not coach complainant nor provide him with a Performance

Improvement Plan. BT "talked down" to complainant and said he did

not like complainant or trust him, and assigned him work that was not

meaningful;

11. BT continually retaliated, discriminated against and harassed him

regarding the PT/IUF program;

12. On November 10, 2005, BT instructed complainant not to speak to

Black candidates;

13. CI retaliated, discriminated against and harassed him in an email

dated February 7, 2006;

14. Complainant was not selected for the position of Training Specialist,

GS-1712-11/12/13, which was advertised under vacancy announcement number

NNSA-05-0212;

15. Complainant lost overtime pay and opportunities for awards from

March 10, 2005, including an award initiated by BT on September 26,

2005, which was given to three other ACT employees;

16. Complainant was threatened and intimidated on January 17, 2006,

when he was "forced to schedule mediation," and when CI stated that the

agency would never decide in his favor and that he might as well give up

on his complaints because it was going to cost him additional hardship,

waste time and cost him lawyer fees. Complainant states that BT also

told him that the agency had all the time, the money and the lawyers to

wear him down;

17. Complainant was threatened and intimidated on January 31, 2006,

when he was approached by CI and BT with a "deal" to drop the severe

disciplinary action he faced if he would drop the EEO complaint; and

18. On February 2, 2006, complainant was threatened with a forced move

to Albuquerque and termination.

In complaint no. 06-0086-AL, complainant alleged the following:

19. On April 19, 2006, a contract employee said to complainant that the

best way to speed reload while holding a weapon and flashlight was to

"put it in your mouth like you are sucking [a body part]. You suck

[the body part], you should know how to do that;"

20. When complainant reported the incident to management, BT stated in

a memorandum dated April 26, 2006, that complainant was the problem; and

21. Upper management intentionally ignored the situation and did not

take any action until they were directed to do so by a senior level

manager at NNSA's Headquarters Office.

In its final decision, the agency found no evidence of discrimination,

yet noted that there "is extreme tension bordering on ill will between

the Complainant and management, especially between the Complainant

and BT, which should be immediately addressed by senior management."

Final Agency Decision of Mar. 23, 2007. Specifically, with regard to

claims 10-12, the agency found that BT had coached complainant extensively

and that the weight of the evidence simply did not support the claims.

The agency procedurally dismissed claim 13 on grounds that it did not

state an actionable claim, and claim 15 on grounds that it stated a

claim that was already raised in complaint no. 05-5413-AL. With regard

to claim 14, the agency found that although complainant established a

prima facie case of discriminatory non-selection, management presented

a non-discriminatory reason for its action which complainant did not

rebut with evidence that he was better qualified than the selectee or

with any other evidence of pretext.3

With regard to claims 16-18, the agency applied a harassment analysis

and determined that although evidence existed putting into question BT

and CI's credibility, complainant's claim cannot stand because it is

based on mere conjecture. According to the agency, the evidence merely

revealed that complainant worked in a "difficult environment" which was

in part due to BT's management style and complainant's "resistance and

incorrigibility to that style." See id. at 15. Noting that Title VII

does not guarantee fair treatment at work and that complainant was never

actually disciplined or threatened with termination, the agency concluded

that there was no proof of discriminatory motive in the managers' actions.

The agency applied a harassment analysis with regard to claims 19-21 as

well and found that, contrary to complainant's assertions, management

acted in a timely manner ensuring prompt and corrective action. With

respect to the memo that BT drafted stating that complainant was the

true problem, the agency found that although preparation of the memo was

not discriminatory, "the reason he gave for preparing [it] is somewhat

specious.... If anything, the memo demonstrates that BT does not have

a positive attitude toward the Complainant inasmuch as the investigation

uncovered no fault of complainant with respect to the action of CR, and

BT has not shown that complainant was in anyway at fault." Id. at 18.

CONTENTIONS ON APPEAL

Appeal No. 0120071137 (Agency No. 05-5413-AL)

In his appeal of the agency's decision on complaint no. 05-5413-AL,

complainant argues that the agency has not articulated a legitimate

non-discriminatory reason for his HRP suspension. Complainant points

to the fact that other employees, outside of his protected bases, were

treated differently than he and that even before becoming his supervisor,

BT harbored animosity toward complainant.4

In response, the agency argues that the suspension and the revocation of

his HRP certification must stand as the Commission has no authority to

decide such because, like a security clearance, HRP certification is a

highly sensitive and inherently discretionary judgment reserved only to

the agency. In any event, the agency points out that the agency's Office

of Hearings and Appeals was in the process of reviewing the matter to

ensure equity. The agency also continues to stand behind its decision

finding no discrimination as to claims 3, 4, 6, and 8.

Appeal No. 0120072378 (Agency Nos. 06-0063-AL & 06-0086-AL)

With regard to complaint nos. 06-0063-AL and 06-0086-AL, complainant

argues that he was not given the opportunity to elaborate on his

claims with an EEO Counselor, that the agency improperly failed to

accept some of his claims, that the agency failed to investigate in a

timely manner the claims it did accept, and that the agency's finding

of no discrimination was improper. Specifically, complainant argues

that although the agency found that management had retaliated against

him in complaint no. 05-5413-AL, the agency "did nothing to address,

correct, or repair the issues surround[ing] the discrimination.... [The

agency kept complainant] under the supervision of the same individuals

who discriminated and retaliated against [him] in the first place."

Statement on Appeal of Apr. 20, 2007 at 3. As a consequence, he

maintains, management continued to harass him and labeled him as a

"frequent filer." Id. The agency, for its part, did not provide a

statement in opposition to the appeal.

ANALYSIS AND FINDINGS

As these are appeals from decisions issued without a hearing, pursuant

to 29 C.F.R. � 1614.110(b), the agency's decisions is subject to de novo

review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management

Directive 110, Chapter 9, � VI.A. (Nov. 9, 1999). (explaining that the de

novo standard of review "requires that the Commission examine the record

without regard to the factual and legal determinations of the previous

decision maker," and that EEOC "review the documents, statements, and

testimony of record, including any timely and relevant submissions of

the parties, and . . . issue its decision based on the Commission's own

assessment of the record and its interpretation of the law").

Disparate Treatment

To prevail in a disparate treatment claim such as this, complainant must

satisfy the three-part evidentiary scheme fashioned by the Supreme Court

in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant

must initially establish a prima facie case by demonstrating that he was

subjected to an adverse employment action under circumstances that would

support an inference of discrimination. See Furnco Constr. Co. v. Waters,

438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending

on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804

n.14.5 The burden then shifts to the agency to articulate a legitimate,

nondiscriminatory reason for its actions. See Texas Dep't of Community

Affairs v. Burdine, 450 U.S. 248, 253 (1981). Finally, to ultimately

prevail on the claim, complainant must prove by a preponderance of

the evidence, complainant must show that the agency's explanation is

pretextual. See Reeves v. Sanderson Plumbing Prods, Inc., 530 U.S. 133

(2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

The agency does not dispute the findings of race, color and reprisal

discrimination with regard to claims 1, 5, 7, and 9. As such, and

given the weight of the evidence in the record, we do not disturb these

findings. With regard to claim 2, our review of the record reveals

no evidence of discriminatory conduct. Complainant has not presented

sufficient evidence showing that the agency's justifications for its

actions were pretextual.

Retaliatory Harassment6

We do find evidence of retaliatory harassment. To prevail on this claim,

complainant must show that: (1) he engaged in prior EEO activity; (2)

he was subjected to unwelcome conduct related to his protected class;

(3) the harassment complained of was based on her prior EEO activity;

(4) the harassment had the purpose or effect of unreasonably interfering

with his work performance and/or creating an intimidating, hostile,

or offensive work environment, and (5) there is a basis for imputing

liability on the agency. See Holton v. United States Postal Serv.,

EEOC Appeal No. 01991307 (Nov. 7, 2002); McCleod v. Soc. Sec. Admin.,

EEOC Appeal No. 01963810 (Aug. 5, 1999) (citing Henson v. City of Dundee,

682 F.2d 897 (11th Cir. 1982). Moreover, the alleged conduct must be

sufficiently severe or pervasive to trigger a violation of Title VII.

We evaluate the claim by looking at all the circumstances, including

the frequency of the discriminatory conduct, its severity, whether it is

physically threatening or humiliating, or a mere offensive utterance, and

whether it unreasonably interferes with an employee's work performance.

See Harris v. Forklift Sys., 510 U.S. 17 (1993).

Complainant here has shown that he engaged in prior EEO activity,7 that

the responding management officials knew of the protected activity,8

that he was subsequently subjected to unwelcome conduct, and that the

harassment had the purpose and effect of unreasonably interfering with his

work performance and creating a hostile work environment. The agency's

Partial Final Decision of May 2, 2006 points out that when complainant

began his tenure at Fort Chafee, he received numerous performance and

cash awards, and just prior to the events of the instant complaints,

management officials rated him as "significantly exceeds expectations"

on his performance evaluations. However, as the agency acknowledges,

things drastically changed when BT became complainant's supervisor in

late 2004. See Partial Final Agency Decision at 8. Complainant explains

that things got even worse in January 2005, when BT brought SC to the

Fort Chafee ACT. Statement on Appeal.

In fact, the agency decision notes with regard to claims 1, 5, and 7

that management's reasons for removing complainant from the ACT program

were not credible or legitimate. An internal investigation into the

allegations brought by the two students gave credence to complainant's

repeated attempts to clarify that he did not intend to imply that the

students were in an inappropriate relationship. Nevertheless, management

disregarded the investigation's conclusion and, at BT's insistence,

removed complainant from the ACT program. The agency acknowledged

that complainant did not act beyond the scope of his authority in

counseling the students for using the word "baby." It actually supported

complainant's course of action. The agency further rejected management's

argument that removal from ACT was best for complainant in order to spare

him any embarrassment. Instead, the agency noted that management's

abrupt removal of complainant from a promotional position and the ACT

program was what was humiliating and ultimately found that the removal

was too severe a penalty. It summarized its view stating that:

Disciplinary action against an employee for the purpose of satisfying the

desires of other employees is not appropriate. We cannot find logic in

CI's statement that allowing the complainant to remain in his instructor

position would lower morale among the students, after the complainant had

apologized and explained that he did not intend to infer that the two

students were in an inappropriate relationship. At most, the incident

was a misunderstanding....It could have easily been resolved in CI's

office without the awareness of the other students in the academy.

Id. at 11-12.

Viewing these events as the context for the acts alleged in complaint

nos. 06-0063-AL and 06-0086-AL, we find that management showed clear ill

will towards complainant. Taken as a whole, the alleged incidents are

sufficiently severe to constitute retaliatory harassment. It is clear

that BT and SC resented complainant and were upset that complainant

had identified them as responsible management officials. BT's actions,

as conceded by the agency revealed this much.

As management officials were responsible for the harassment, we can impute

liability on the agency. The agency is entitled to an affirmative defense

to liability, see Burlington Indus., Inc., v. Ellerth, 524 U.S. 742 at

765 (1998); Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998),

but we find that the agency failed to take immediate and appropriate

corrective action. On appeal, complainant explains that the agency

did nothing to address or improve his work environment. Supervisors

purportedly "threatened" him if he did not stop pursuing his EEO rights.

See Statement on Appeal of Apr. 20, 2007. In fact, according to

complainant, despite a finding of discrimination and the continued

allegations raised against the same responding management officials,

the agency kept complainant under their supervision. Notably, the

agency has not responded to or disputed these assertions. Accordingly,

we conclude that the agency failed to take appropriate corrective action

to address the discrimination and/or to prevent it from recurring.

CONCLUSION

Having reviewed the record and considered the arguments on appeal, we

find no error in the agency's decision in appeal no. 0120071173 (agency

complaint no. 05-5413-AL). However, we do find error in the agency's

decision in appeal no. 0120072378 (agency complaint nos. 06-0063-AL and

06-0086-AL) as we conclude that complainant was subject to retaliatory

harassment. As such, in accordance with the Order below, we AFFIRM the

agency's final decision in appeal no. 0120071173 and REVERSE IN PART

the agency's final decision in appeal no. 0120072378.

ORDER

Within sixty (60) days of the date this decision becomes final, the

agency shall:

(1) Conduct a supplemental investigation into the question of compensatory

damages for the discrimination found in regards to the HRP suspension.

The agency shall then issue a final agency decision addressing damages,

a copy of which the agency shall submit to the Compliance Officer at

the address set forth below;

(2) Expunge from complainant's personnel file any reference to the

two-day suspension;

(3) Expunge from complainant's personnel file any reference to

complainant's removal from the ACT training program;

(4) Offer complainant a Training Specialist, GS--1712-11/12/13, position,

or a substantially equivalent position9 retroactive to the date of his

non-selection. Complainant shall have 15 days from receipt of the offer to

accept or decline the offer. Failure to accept the offer within 15 days

will be considered a rejection of the offer, unless the complainant can

show that circumstances beyond his control prevented a response within

the time limit.

(5) Take immediate steps to provide a minimum of eight (8) hours of EEO

training to all officials involved in this case on their responsibilities

with respect to eliminating discrimination and harassment in the federal

workplace. The training must emphasize the agency's obligations under

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e

et seq.

(6) Take all necessary corrective, curative, or preventive action

to ensure that similar violations of the law will not recur. See 29

C.F.R. � 1614.501(a)(2); and

(7) 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).

POSTING ORDER (G0900)

The agency is ordered to post at its facility in Chafee, Arkansas

the 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 (K0408)

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, D.C. 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, D.C. 20013. In the absence of a legible postmark, the

request to reconsider shall be deemed timely filed if it is received by

mail within five days of the expiration of the applicable filing period.

See 29 C.F.R. � 1614.604. The request or opposition must also include

proof of service on the other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. Any supporting documentation

must be submitted with your request for reconsideration. The Commission

will consider requests for reconsideration filed after the deadline only

in very limited circumstances. See 29 C.F.R. � 1614.604(c).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0408)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. You have the right to file a civil action in

an appropriate United States District Court within ninety (90) calendar

days from the date that you receive this decision on both that portion

of your complaint which the Commission has affirmed and that portion

of the complaint which has been remanded for continued administrative

processing. In the alternative, you may file a civil action after

one hundred and eighty (180) calendar days of the date you filed your

complaint with the agency, or your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

If you file a civil action, you must name as the defendant in the

complaint the person who is the official agency head or department head,

identifying that person by his or her full name and official title.

Failure to do so may result in the dismissal of your case in court.

"Agency" or "department" means the national organization, and not the

local office, facility or department in which you work. If you file

a request to reconsider and also file a civil action, filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1008)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request from the Court that

the Court appoint an attorney to represent you and that the Court also

permit you to file the action without payment of fees, costs, or other

security. See Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,

29 U.S.C. �� 791, 794(c). The grant or denial of the request is within

the sole discretion of the Court. Filing a request for an attorney with

the Court does not extend your time in which to file a civil action.

Both the request and the civil action must be filed within the time

limits as stated in the paragraph above ("Right to File A Civil Action").

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

March 6, 2009

Date

1 The EEOC considers "Hispanic" to be a national origin. See EEOC,

Questions and Answers about Race and Color Discrimination in Employment

(rev. Apr. 19, 2006).

2 The agency noted in its final decision on complaint nos. 06-0063-AL

and 06-0086-AL that the question of damages was at the time pending

before the agency. See Final Agency Decision of Mar. 23, 2007 at n.7.

As of the date of this decision, however, we have not received notice

that the agency issued its decision on damages.

3 Despite this finding, the agency noted that BT could have,

and perhaps should have, handled the selection process differently.

BT was the only official involved in the final decision-making process.

The agency stated that it "would have been advisable for management to

involve other officials in the selection process, in order to avoid any

appearance of bias." Nevertheless, although making this observation,

the agency stated that the procedure BT applied was not discriminatory.

See Final Decision of Mar. 23, 2007 at 11.

4 Complainant refers to the fact that is documented in the record that

BT was the subject of a prior EEO complaint brought by complainant.

5 A prima facie case of reprisal discrimination is established by

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

inference of discrimination. See Shapiro v. Soc. Sec. Admin., EEOC

Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas, 411

U.S. at 802). Specifically, a complainant may show that: (1) he engaged

in a protected activity; (2) the agency was aware of the protected

activity; (3) subsequently, he was subjected to adverse treatment by

the agency; and (4) a nexus exists between the protected activity and

the adverse treatment. See Whitmire v. Dep't of the Air Force, EEOC

Appeal No. 01A00340 (Sept. 25, 2000).

6 Although complainant specifically alleged harassment, the agency

failed to analyze the incidents as a single harassment claim, choosing

instead to fragment and analyze the incidents as individual disparate

treatment claims.

7 Complainant filed an EEO complaint in March 2003 against SC.

The Partial Final Agency Decision of May 2, 2006, documents how in that

prior complaint, complainant had sought a transfer to Fort Chafee to

escape harassment brought on by SC and others.

8 Although BT claimed he didn't know of complainant's prior complaint,

the facts revealed that BT knew of the prior complaint at least the day

before he initiated the removal of his ACT duties. See Partial Final

Agency Decision of May 2, 2006 at 8.

9 The Commission has consistently held that a substantially equivalent

position is one that is similar in duties, responsibilities, and location

(reasonable commuting distance) of the position for which complainant

originally applied. See, e.g., Monroig v. U.S. Commission on Civil

Rights, EEOC Petition No. 04A40029 (Sept. 29, 2005); Spicer v. Dep't of

the Interior, EEOC Petition No. 04980007 (Sept. 24, 1998). The burden is

on the agency to establish that the position offered to complainant is

in fact substantially equivalent to the position lost. See Rai v. Dep't

of the Interior, EEOC Appeal No. 01901186 (May 17, 1990).

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