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.