John E. Hilsman, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid Atlantic Region),) Agency.

Equal Employment Opportunity CommissionOct 5, 1999
01975763 (E.E.O.C. Oct. 5, 1999)

01975763

10-05-1999

John E. Hilsman, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid Atlantic Region),) Agency.


John E. Hilsman, )

Appellant, )

) Appeal No. 01975763

v. ) Agency Nos. 4D-200-1168-94

) 4D-200-1246-94

William J. Henderson, ) Hearing Nos. 100-95-7323X

Postmaster General, ) 100-95-7679X

United States Postal Service, )

(Allegheny/Mid Atlantic Region),)

Agency. )

)

DECISION

Appellant initiated an appeal from a final agency decision (FAD)

concerning his equal employment opportunity (EEO) complaint of unlawful

employment discrimination in violation of Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. � 2000e et seq. Appellant appeals to

the Commission for a determination of whether the agency has complied with

the terms of a final decision dated February 21, 1997. The appeal is

accepted in accordance with EEOC Order No. 960.001. For the following

reasons, the agency's decision is AFFIRMED in part, and VACATED and

REMANDED in part.

BACKGROUND

A review of the record indicates that during the relevant time,

appellant was employed as a Letter Carrier at the agency's V Street

Annex, Washington, D.C. Believing he was a victim of harassment on the

bases of his race (Caucasian), religion (unspecified), and in reprisal

for engaging in EEO activity, appellant sought EEO counseling and,

subsequently, filed formal complaints on June 28, 1994, and November

2, 1994. After both complaints were initially dismissed on procedural

grounds, appellant appealed the dismissals, and the Commission reversed

and remanded both final agency decisions for further processing. See

Hilsman v. United States Postal Service, EEOC Appeal No. 01950499 (March

31, 1995), and Hilsman v. United States Postal Service, EEOC Appeal

No. 01945686 (March 31, 1995). At the conclusion of the investigation,

appellant was provided a copy of the investigative reports and requested

a hearing before an EEOC Administrative Judge (AJ). The complaints

were consolidated and the AJ conducted a hearing on April 9, 10, and

16, 1996. On December 20, 1996, the AJ issued a Recommended Decision

(RD) finding that appellant was a victim of unlawful discrimination due

to the existence of a hostile environment on the above-referenced bases.

On February 21, 1997, the agency issued its FAD, concurring with the

AJ's findings of fact and conclusions of law. As corrective action,

and consistent with the AJ's recommended relief, the agency ordered

(verbatim) the following remedial action:

Pay the [appellant] twenty thousand dollars ($20,000) for compensatory

damages and twelve hundred dollars ($1,200) for past medical expenses;

Review the [appellant's] attendance leave record between the time period

of December of 1992 through July of 1994 and restore any sick/annual

leave and pay the [appellant] for any leave without pay ... taken in

response to subject harassment;

Offer the [appellant] the opportunity to be reassigned to another

facility;<1>

Award [appellant] reasonable attorney's fees and costs as provided by

29 C.F.R. � 1614.501(e);<2>

Post notices for at least ninety (90) days in conspicuous places at the

V Street Annex that employees have a right to work in an environment

free from unlawful discrimination;<3> and,

Provide training for managers at the V Street Annex on the prevention

of religious [and] race-based harassment, hostile work environment,

and reprisal.<4>

See FAD at page 2.<5> Pursuant to footnote 1 of item number (3) above,

appellant sent the agency a letter dated March 18, 1997, entitled

�Complainant's Request for Reassignment in Accordance with Final Agency

Decision.� In this letter, appellant identified a number of facilities

in Florida to which he would accept a reassignment. The agency responded

via a letter dated June 6, 1997, denying his requested reassignment.

In its letter, the agency stated that:

It is the position of the Agency that the Administrative Judge's

recommendation to '... reassign you to another facility' does not

include installations outside of the personnel appointing authority of

the Capital District where your discrimination claim arose. Therefore,

your request to be reassigned on the basis of the decision in the subject

cases is denied.

See Exhibit D of appellant's Petition For Enforcement. The agency's

denial letter provided appellant appeal rights to this Commission.

Thereafter, appellant initiated an appeal to the Commission, seeking

enforcement of the FAD. In its Petition for Enforcement, appellant

indicated that the agency has complied with items (1) and (4), but has

thus far failed to comply with the remedial actions set forth in the

remaining items. Appellant further contends that with respect to item

(3), neither the AJ nor the agency limited the geographic scope of any

potential reassignment. Appellant also contends that during the hearing,

he testified as to his inability to request a transfer to Florida to care

for his mother because the hostile environment he endured required him

to take a significant amount of sick leave. Appellant indicated that it

was well known among employees that the agency reviews and relies heavily

on an individual's use of sick leave in granting or denying transfers,

and that appellant's use of sick leave, which resulted from the hostile

environment, precluded any realistic opportunity for requesting the

transfer he desired. Appellant contends that restoring him to the

position he would have been in absent the hostile environment, i.e., a

position in a facility he would have received a transfer to, absent the

discrimination, is the proper make-whole remedy for the discrimination

he endured.

Shortly thereafter, appellant submitted to the Commission an Addendum to

the Petition for Enforcement (Addendum). In this Addendum, appellant

noted that after submitting his Petition for Enforcement, a defective

�Notice to Employees� (NOTICE) was posted at the agency's V Street Annex.

Appellant indicated that the NOTICE, dated July 24, 1997, provided that

it was �posted pursuant to a settlement agreement approved by a Regional

Director of the National Labor Relations Board...� Additionally,

the NOTICE referenced appellant's name, agency case numbers and EEOC

case numbers on its face. Appellant contends that the posting of

the defective NOTICE constituted continuing harassment and a �callous

disregard for [appellant's] well-being.� Appellant further contends

that it was a �flagrant violation of the letter and spirit of the AJ's

decision,... which amounts to yet another unlawful act of discrimination

and retaliation,� where the AJ specifically found that the hostile

environment at the facility was exacerbated when agency employees were

made aware that it was appellant who had opposed the unlawful practices

which had been occurring at the V Street Annex.<6> Appellant contends

that the NOTICE therefore compounds, not remedies, the adverse effects

of the unlawful harassment he endured, and further justifies the need

for the Commission to reinstate appellant's request for a reassignment

from the V Street Annex to one of the facilities in Florida to which

appellant indicated he would accept a relocation.

On September 29, 1997, the agency responded to appellant's Petition

for Enforcement and Addendum. In its response, the agency noted that

items (1) and (4) have been complied with and are not in dispute.

Respecting item (3), the agency argues that appellant never filed

a complaint regarding the denial of a transfer to another office,

and offering appellant a transfer to Florida is beyond the scope of the

issues addressed by the AJ and therefore does not constitute appropriate

Title VII make-whole relief. The agency argues that the proper remedy

for the discrimination was to offer appellant a reassignment to another

facility within the Capital District, which has over one hundred and

fifty (150) stations and twelve thousand (12,000) employees. The agency

argued that it was inappropriate �to allow [appellant] carte blanche

opportunity to reassign anywhere� where such a result was not what the

AJ could have intended, and where such a result would require the agency

to potentially violate seniority rights and other relevant provisions

of a collective bargaining agreement. The agency finally noted that if

appellant's interpretation of Title VII make-whole relief were followed

to its logical extreme, that the agency would have to transfer him to

Hawaii if he so requested.

Concerning item (2), the agency indicated that it was still in the

process of reviewing and determining whether appellant should receive

any pay for sick leave used between December of 1992 and July of 1994.

Concerning item (6), the agency indicated that it scheduled applicable

training for the third week of October, 1997, and that all managers

involved in appellant's EEO complaints have been transferred from the

V Street Annex. Concerning item (5), the agency indicated that it did

post a notice, as indicated by appellant, for at least ninety (90) days,

and while admitting it was not the standard notice, the agency noted that

the AJ did not include a notice in his RD. The agency did not respond

to appellant's allegation that appellant's name was on the face of the

posting. In this regard, we note that the copy of the posting provided

by the agency does not contain appellant's name and case numbers on the

face of the NOTICE, while appellant's copy of the NOTICE contains such

information on its face.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. � 1614.401(d) provides that a complainant

may appeal to the Commission an agency's alleged noncompliance with

a final decision in accordance with � 1614.504. 29 C.F.R. � 1614.504

provides that a complainant must notify the agency in writing of the

alleged noncompliance with a FAD within 30 days of when the complainant

knew or should have known of the alleged noncompliance. Thereafter,

a complainant may file an appeal with the Commission thirty-five (35)

days after he has served the agency with allegations of non-compliance if

the agency has not responded, but must file an appeal within thirty (30)

days of receipt of the agency's determination regarding the allegation

if the agency has failed to satisfactorily respond to the complainant's

satisfaction.

An agency's finding of discrimination entitles a complainant to full

relief. In the jurisprudence of federal EEO law, full relief must

be evaluated in terms of whether it includes everything to which

the complainant is entitled following a finding of discrimination

entered with respect to his or her complaint allegations. See Franks

v. Bowman Transportation Co., 424 U.S. 747, 764 (1976); Albemarle Paper

Co. v. Moody, 422 U.S. 405 (1975); Parker v. Department of the Army,

EEOC Request No. 05950787 (April 17, 1997). In Albemarle, the Court

held that the purpose of Title VII is to make victims whole. 422

U.S. at 418-19. This requires eliminating the particular unlawful

employment practice complained of, as well as restoring the victim to

the position he or she would have occupied were it not for the unlawful

discrimination. Id. at 420-21. Since Title VII is a "make whole" statute,

the Commission has broad authority to fashion relief to the specifics

of the case.

The Commission first notes that neither appellant nor the agency formally

complied with 29 C.F.R. � 1614.401(d) and � 1614.504. After appellant

submitted his request for reassignment pursuant to footnote (1) of item

(3) of the remedy set forth in the FAD, the agency rejected his request,

and provided in its rejection letter appeal rights to the Commission

respecting the denial of reassignment. Thereafter, appellant initiated an

appeal, and included allegations that the agency did not comply with items

(2), (5), and (6), as set forth in the FAD, without first notifying the

agency of its alleged non-compliance, pursuant to 29 C.F.R. � 1614.504(a).

Subsequently, both appellant and the agency submitted arguments to the

Commission respecting each of the contested items set forth in the FAD.

Notwithstanding the procedural errors leading to the instant appeal,

we find that the record contains sufficient information to resolve

the instant matters. See Gay-Evans v. Department of Transportation,

EEOC Appeal No. 01933309 (June 6, 1994). The Commission will therefore

address each item of the FAD at issue.

ITEMS (2) and (6)

The agency has indicated that it was in the process of complying with

these items; however, the record before us contains no documentation that

the provisions set forth in items (2) and (6) have been complied with.

The Commission also notes that although not provided by the AJ or the

agency in its FAD, diversity training for managers and employees at

the V Street Annex is an appropriate remedy for their part in creating

and exacerbating the hostile environment appellant endured. See Longus

v. Department of Labor, EEOC Appeal No. 01941038 (March 1, 1994).

Therefore, to the extent the agency has failed to do so, upon remand,

it shall comply with items (1), (3), and (4) of our ORDER below.

ITEM (3)

The Commission concludes that the agency's interpretation of the AJ's

reassignment order to mean a reassignment to a facility within the

Capital District is consistent with prior Commission precedent and with

the principles of make-whole relief under Title VII. We note that

while the Commission has previously ruled that the victim of harassment

should not be required to take an involuntary transfer or reassignment,

see Taylor v. Department of the Air Force, EEOC Request No. 05920194

(July 8, 1992), the Commission has upheld the reassignment of a victim

of harassment where the victim agreed to the reassignment. See Hodge

v. Department of Transportation, EEOC Petition No. 04910007 (January

21, 1992).

However, an agency is not required to grant a victim of harassment

reassignment to another state, in order to constitute full relief, so

long as the reassignment is voluntary, that it is to a �substantially

equivalent� position, and that it is to a location and position which

minimizes the chance the alleged discrimination or harassment would

reoccur. See Kelly v. Veterans Administration, EEOC Appeal No. 01922085

(September 2, 1992)(a request to transfer to a facility out of state by a

victim of harassment need not be honored to constitute full relief); see

also Hodge v. Department of Transportation, EEOC Petition No. 04910007

(January 21, 1992)(agency is not obligated to transfer complainant to

facility of her choice, i.e., to be with her spouse, when the agency

satisfied the make-whole requirements of Title VII by placing complainant

in a facility different from where the harasser was stationed).

The Commission notes that one of the remedies appellant sought in his

formal complaints was a reassignment to Orlando, Florida. The Commission

also notes, however, that the agency is not required to reassign appellant

to another state so long as the offer of reassignment meets the three

(3) requirements set forth in Kelley, supra.<7>

We therefore agree with the agency's position that a reassignment in this

context requires only that the agency offer appellant a reassignment

to a facility within the Capital District. Because of the obvious

confusion resulting from the language set forth in item (3) of the FAD,

we will order on remand that the agency provide appellant a new thirty

day time period for appellant to renew his request for a reassignment

to a facility within the area identified by the agency as the Capital

District. The agency shall bear the costs, if any, associated with

reassigning appellant to another facility within the Capital District.

The Commission also reminds the agency that future orders which include

reassignments or transfers should specify relevant details such as

limitations on the potential geographic scope of a reassignment, and

which party may bear the cost of the reassignment, so as to avoid any

confusion or misinterpretation of the kind experienced here.

ITEM (5)

The Commission concludes that the agency NOTICE misinformed its employees,

and therefore did not adequately conform with the Commission's Regulations

at 29 C.F.R. � 1614.501 concerning such notices. In his RD, the AJ

recommended that the agency post �appropriate notices,� and referred

the agency to Appendix A of the Commission's prior Regulations at 29

C.F.R. Part 1613.<8> The resulting agency NOTICE provided that it was

being posted, in uppercase and bold captions, �PURSUANT TO A SETTLEMENT

AGREEMENT APPROVED BY A REGIONAL DIRECTOR OF THE NATIONAL LABOR RELATIONS

BOARD.� The NOTICE also provided the addresses and phone numbers of two

regional NLRB offices at the bottom of the NOTICE. The Commission finds

that the NOTICE did not adequately inform employees that the posting was

made pursuant to a finding by the EEOC that a violation of Title VII of

the Civil Rights Act of 1964,

as amended, occurred at the V Street Annex.<9> We therefore VACATE

item (5) of the FAD and REMAND that portion of the FAD to the agency

for further processing in accordance with this decision and the ORDER

below concerning a proper posting, which the Commission includes as a

part of this decision.

CONCLUSION

After a careful review of the record, including appellant's contentions

on appeal, the agency's response, and arguments and evidence not

specifically discussed in this decision, the Commission AFFIRMS in part,

the agency's decision to deny appellant a reassignment to Florida, and

VACATES and REMANDS, in part, the agency's defective notice posting,

its restoration of sick and annual leave, and its provision of training

to relevant agency management officials. On remand, the agency shall

take all remedial actions required in order to comply with this decision

and the ORDER below.

ORDER (D1092)

The agency is ORDERED to take the following remedial action:

1. To the extent the agency has not already done so, the agency is

directed to conduct a minimum of twenty-four (24) hours of training for

the managers and supervisors who were found to have participated in, or

condoned the existence of a hostile environment at the V Street Annex.

The agency shall address these employees' responsibilities with respect

to eliminating harassment and discrimination in the workplace; properly

investigating and addressing allegations of a hostile environment;

and the proper procedures respecting the EEO process.

2. The agency shall take appropriate preventative steps to ensure that

no employee is subjected to harassment based on race, religion and

reprisal, and to ensure that appropriate steps are taken immediately

after management is notified of any such harassment.

3. The agency shall provide a minimum of eight (8) hours of diversity

training for all managers and employees at the V Street Annex. To the

extent that any manager or employee found to have participated in or

condoned the harassment is still employed with the agency, but is no

longer stationed at the V Street Annex, the agency shall ensure that

such employees receive similar diversity training, which shall include

sensitivity training respecting race, religion, and the EEO process.

4. To the extent the agency has not already done so, the agency

shall, within fifteen (15) days of the receipt of this decision, review

appellant's attendance leave record between the time period of December of

1992, through July of 1994, restore any sick or annual leave, and, within

thirty (30) days of the receipt of this decision, reimburse appellant

(including interest) for any leave without pay taken in response to the

unlawful harassment

5. Within thirty (30) days of the date the agency receives this decision,

the agency shall offer appellant, in writing, the opportunity to be

reassigned to another facility within the Capital District. Within thirty

(30) days of receipt of the agency's letter, appellant must notify the

agency in writing if he requests reassignment, and identify possible

facilities where appellant would be willing to be so reassigned, within

the Capital District. If appellant identifies an appropriate location

within the Capital District, the agency shall reassign appellant to

that facility, at a similar position and grade, at the agency's expense.

If the appellant declines an offer to be reassigned to another facility,

or fails to respond after thirty (30) days of receiving the offer of

reassignment from the agency, then the agency shall take prompt steps

to reassign the harassers out of the V. Street Annex.

6. The agency shall post at its V Street Annex, Washington, D.C., 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 ninety (90) 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.

7. The agency shall provide attorney's fees to appellant, as set forth

herein, for those portions of the appeal in which the Commission vacated

and remanded the FAD for further agency action.

8. The agency is further directed to submit a report of compliance, as

provided in the statement entitled "Implementation of the Commission's

Decision." The report shall include supporting documentation of the

agency's calculation of any benefits due appellant, including evidence

that the corrective action has been implemented.

ATTORNEY'S FEES (H1092)

If appellant has been represented by an attorney (as defined by 29

C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of

reasonable attorney's fees incurred in the processing of this appeal.

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 and this decision.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30) calendar

days of the completion of all ordered corrective action. The report shall

be submitted to the Compliance Officer, Office of Federal Operations,

Equal Employment Opportunity Commission, P.O. Box 19848, Washington,

D.C. 20036. The agency's report must contain supporting documentation,

and the agency must send a copy of all submissions to the appellant.

If the agency does not comply with the Commission's order, the appellant

may petition the Commission for enforcement of the order. 29 C.F.R. �

1614.503(a). The appellant also has the right to file a civil action

to enforce compliance with the Commission's order prior to or following

an administrative petition for enforcement. See 29 C.F.R. �� 1614.408,

1614.409, and 1614.503(g). Alternatively, the appellant has the right to

file a civil action on the underlying complaint in accordance with the

paragraph below entitled "Right to File A Civil Action." 29 C.F.R. ��

1614.408 and 1614.409. A civil action for enforcement or a civil action

on the underlying complaint is subject to the deadline stated in 42

U.S.C. � 2000e-16(c)(Supp. V 1993). If the appellant files a civil

action, the administrative processing of the complaint, including any

petition for enforcement, will be terminated. See 29 C.F.R. � 1614.410.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in the

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments

must bear proof of postmark and be submitted to the Director, Office of

Federal Operations, Equal Employment Opportunity Commission, P.O. Box

19848, Washington, D.C. 20036. In the absence of a legible postmark, the

request to reconsider shall be deemed filed on the date it is received

by the Commission.

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

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and any supporting documentation must be submitted with your

request for reconsideration. The Commission will consider requests

for reconsideration filed after the deadline only in very limited

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

RIGHT TO FILE A CIVIL ACTION (T0993)

This decision affirms the agency's final decision 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 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.

It is the position of the Commission that you have the right to file

a civil action in an appropriate United States District Court WITHIN

NINETY (90) CALENDAR DAYS from the date that you receive this decision.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. In the alternative, you may file

a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the

date you filed your complaint with the agency, or 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 (Z1092)

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

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

an attorney to represent you and that the Court permit you to file the

action without payment of fees, costs, or other security. See Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).

The grant or denial of the request is within the sole discretion of

the Court. Filing a request for an attorney does not extend your time

in which to file a civil action. Both the request and the civil

action must be filed within the time limits as stated in the paragraph

above ("Right to File A Civil Action").

FOR THE COMMISSION:

October 5, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

1 Within thirty (30) days of receipt of this decision, the [appellant]

must notify the Agency in writing if he requests reassignment and identify

possible facilities. If the [appellant] does not respond within the

above time period, the Agency considers the matter of reassignment closed.

2 [Appellant's] attorney must submit a verified statement of costs and

attorney's fees within thirty (30) days of receipt of this decision to

the following individual and address: Michael Brown, EEO Compliance and

Appeals, Room 202, U.S. Postal Service, Cincinnati, OH 45234-9994.

3 For the specific content of the notice, please see pages 25-26 of the

Administrative Judge's recommended decision.

4 Prior to initiating, please contact the Office of EEO Compliance and

Appeals for recommendations as to the specific subjects for the training.

5 The Commission notes that footnotes one through four on the prior page

are also, verbatim, from the final agency decision.

6 While the AJ's RD adequately and clearly sets forth the facts giving

rise to appellant's complaints of harassment, we note, in briefly

summarizing his complaints, that appellant, the only Caucasian employee

during the relevant time at the V Street Annex, opposed the unlawful

practice by agency employees of religious proselytizing over the agency's

public address system; and he endured pernicious acts of harassment,

including repeated racial epithets by employees, being ostracized by

employees, enduring delays in the distribution of mail, and having his

delivery vehicle urinated on, after he voiced his opposition to the

above-referenced religious practices.

7 Had appellant applied for, and been denied, a transfer to a facility in

Florida, and had this issue been addressed as a separate adverse action

by the AJ, then a reassignment to Florida may have been appropriate.

Here, however, appellant never alleged that he was denied a transfer

because of discriminatory animus, and awarding him a reassignment to

Florida would constitute an unjust windfall where reassignment to a

facility within the Capital District should be sufficient to ensure that

appellant is separated from those who have perpetuated the harassment.

8 The relevant text in Appendix A of 29 C.F.R. part 1613 provides, among

other things, that the agency's posting shall be �on E.E.O.C. forms

... [and] [t]hat the notice is ... posted as part of the remedy agreed

to ... pursuant to a decision and order in a Federal sector case.� We

note that the AJ's reference to Appendix A of 29 C.F.R. part 1613 is no

longer relevant where 29 C.F.R. part 1614 effectively repealed part 1613

and its corresponding Appendix A. The Commission notes that the interim

Regulation at 29 C.F.R. � 1614.501(a), published Friday, April 10, 1992,

provided for �full relief, as explained in Appendix A of part 1613 of

this chapter,...� However, when the final version of � 1614.501 was

adopted on August 21, 1995, the above-quoted phrase was deleted from,

and is no longer a part of, this section.

9 Because the Commission concludes, on other grounds, that the NOTICE

was inadequate, we do not address appellant's contention that the agency

deliberately placed his name on the face of the NOTICE posting. While the

record is ambiguous as to whether or not appellant's name did appear on

the posting (see supra pages 3-4, and the ADDENDUM), we remind the agency

of its obligation to ensure that such NOTICE postings accurately convey,

among other things, the nature of the violation and the remedy ordered,

without providing specific identifying information such as appellant's

name, or agency case numbers.