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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