0120080665
11-04-2009
Kirk E. Webster, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (National Geospatial-Intelligence Agency), Agency.
Kirk E. Webster,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(National Geospatial-Intelligence Agency),
Agency.
Appeal No. 0120080665
Agency No. NGAE-07-P01
DECISION
Complainant filed an appeal with this Commission from the undated agency
decision finding no discrimination.1
Complainant alleges 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. During the relevant time complainant worked as a Band
4 Lead Cartographic Analyst, N1-4, in the agency's Global Foundation
Office, Source Geospatial Operations East, SGE 5. Complainant filed
an amended complaint alleging that the agency discriminated against him
by subjecting him to a hostile work environment based on race (African
American) and in reprisal for prior EEO activity when:
1. In November 2006, complainant received a less than favorable
evaluation for the rating period October 1, 2005, to September 30, 2006.
2. Management denied complainant's request to attend training during
fiscal year 2006-2007 performance periods.
3. On December 4, 2006, complainant was issued critical elements for
the new performance period and he was not informed of the new mandatory
requirement to attend 80 hours of training each year in the Source
Directorate.
4. On February 2, 2007, complainant learned that he did not receive
a bonus in fiscal year 2007 Total Pay Compensation (TPC) process.
5. On February 21 , 2007, complainant felt threatened, belittled,
and violated when his supervisor confronted him to discuss his leave
restoration status, and the conversation quickly evolved into a "heated
discussion," regarding his having filed an EEO complaint against his
supervisor, and the ill effects it has taken on him.
6. On March 9, 2007, complainant's request to earn compensatory
or overtime hours on the Columbia feature project was denied by "SGE"
management.
The agency prepared a report of investigation (ROI) which included the
transcript of a fact finding conference, held on April 17, 2007, at which
counsel for both parties appeared. The agency issued its decision in
November 2007.
In its decision, the agency concluded that complainant failed to prove
that the agency discriminated against him based on race or reprisal.
The agency also concluded that the six incidents of alleged discrimination
were not sufficiently severe or pervasive to form the basis for a hostile
work environment claim. The agency further concluded that the agency
had articulated legitimate, nondiscriminatory reasons for its actions
and that complainant failed to show pretext or to show that the agency's
actions were based on complainant's protected class or reprisal.
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion is
unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).
A single incident or group of isolated incidents will not be regarded
as discriminatory harassment unless the conduct is severe. Walker
v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the
harassment is sufficiently severe to trigger a violation of Title VII
must be determined 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.
Harris v. Forklift Systems, 510 U.S. 17 (1993).
To establish a prima facie case of a hostile environment, a complainant
must show that: (1) complainant is a member of a statutorily protected
class; (2) complainant was subjected to harassment in the form of
unwelcome verbal or physical conduct involving the protected class;
(3) the harassment complained of was based on the statutorily protected
class; and (4) the harassment affected a term or condition of employment
and/or had the purpose or effect of unreasonably interfering with the
work environment and/or creating an intimidating, hostile, or offensive
work environment. Humphrey v. United States Postal Service, EEOC Appeal
No. 01965238 (October 16, 1998); 29 C.F.R. �1604.11.
Complainant can establish a prima facie case of reprisal by presenting
facts that, if unexplained, reasonably give rise to an inference
of discrimination. Shapiro v. Social Security Admin., EEOC Request
No. 05960403 (December 6, 1996) (citing McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in
accordance with the burdens set forth in McDonnell Douglas, Hochstadt
v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324
(D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Department
of Veteran Affairs, EEOC Request No. 05960473 (November 20, 1997), a
complainant may establish a prima facie case of reprisal by showing that:
(1) complainant engaged in a protected activity; (2) the agency was aware
of the protected activity; (3) subsequently, complainant was subjected
to adverse treatment by the agency; and (4) a nexus exists between the
protected activity and the adverse treatment. Whitmire v. Department
of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000).
The Commission has a policy of considering reprisal claims with a broad
view of coverage. See Carroll v. Department of the Army, EEOC Request
No. 05970939 (April 4, 2000). Under Commission policy, claimed retaliatory
actions which can be challenged are not restricted to those which affect a
term or condition of employment. Rather, a complainant is protected from
any discrimination that is reasonably likely to deter protected activity.
See EEOC Compliance Manual Section 8, "Retaliation," No. 915.003 (May 20,
1998), at 8-15; see also Carroll, supra.
To prevail in a disparate treatment claim, complainant must satisfy
the three-part evidentiary scheme fashioned by the Supreme Court in
McDonnell Douglas Corp., supra. Complainant must initially establish
a prima facie case by demonstrating that he or she was subjected to an
adverse employment action under circumstances that would support an
inference of discrimination. Furnco Construction 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. The burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). The prima facie inquiry
may be dispensed with where the agency has articulated legitimate,
nondiscriminatory reasons for its conduct. See United States Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997).
To ultimately prevail, complainant must prove, by a preponderance of the
evidence, that the agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097
(2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
Preliminary Matters
Complainant asserts in his statement in support of his appeal that he was
not properly advised of his right to request a hearing.2 The record,
however, contains a letter, dated July 24, 2007, from the agency's
Office of Equal Employment addressed to complainant (with a copy to
complainant's counsel) informing complainant that the investigation of his
complaint was completed and he had 30 days to request either a hearing
or an agency decision and stating that if he did not respond within 30
days from receipt of the letter, the agency would issue a decision.
In addition, the records contained a letter, dated January 25, 2007,
from the Office of Diversity & Equal Employment Opportunity, East which
informed complainant that he would receive a copy of the ROI and that
after receiving the ROI, he would have 30 days from its receipt either
to request a hearing before an EEOC Administrative Judge (AJ) or request
an agency decision. This letter also informed complainant that if he
failed to request a hearing or a final agency decision within 30 days,
the agency would issue a decision. Further, we note that complainant
provided the agency with a written request for an agency decision in
August 2007. Also, the record reveals that complainant has engaged in
the EEO process previous to the instant complaint. In the present case
we find that complainant was appropriately notified and aware of his
right to request a hearing.
Complainant also asserts that the agency failed to issue its decision
timely. We find that the agency did not issue its decision until
November 2007. It was therefore untimely because it was not issued
within the 60-day time frame set forth in 29 C.F.R. � 1614.110 (b).
Nonetheless, we find complainant has not shown how he was prejudiced by
the late issuance.
Complainant next asserts that the agency omitted two amendments to his
discrimination complaint and that the EEO Counselor/Program Manager
informed him that the amendments would be incorporated into the final
agency decision. Complainant never explicitly identifies the amendments
in his appeal statement itself. Nonetheless, in records submitted
with his appeal, complainant provided a May 16, 2007 electronic mail
message to EEO Counselor-1 and others in which he asked to file a formal
complaint and alleged that: (1) he received a mid-point evaluation from
his supervisor in which his supervisor stated that complainant desired
to learn how to set up new extraction projects and to lead them; and (2)
management was reassigning him to extraction. Complainant also stated
that he was being subjected to a hostile environment and reprisal.
Complainant stated in the electronic mail message that the ROI was
not completed.
Also submitted by complainant on appeal is an electronic mail message,
dated May 21, 2007, from the Chief, Office of Equal Opportunity (Chief),
asking the EEO Counselor/Program Manager to contact complainant to
begin the pre-complaint process on these allegations.3 Complainant
also submitted two electronic mail messages, dated June 2007, from
the EEO Counselor/Program Manager in which she stated that she needed
complainant to submit forms and to answer questions which she had sent
to him previously.
The record contains an EEO Counselor's Report, dated June 18, 2007,
which was prepared by the EEO Counselor/Program Manager. She identifies
the claims in the EEO Counselor's Report as the claims which complainant
referenced in his May 16, 2007 electronic mail and which have been
previously identified earlier herein. Also submitted by complainant
on appeal is a June 16, 2007 electronic mail message sent to the EEO
Counselor/Program Manager informing her that his May 16, 2007 electronic
mail message (a copy of which he included to her) was now a formal
complaint.
Additionally, complainant submits a July 2, 2007 Memorandum to the
Investigations and Resolutions Division (IRD), Civilian Personnel
Management Service from the Chief (signed on his behalf by the EEO
Counselor/Program Manager) requesting that the IRD include complainant's
May 16, 2007 allegations as a fourth amendment. Complainant also submits
a July 25, 2007 Memorandum from the IRD in which it acknowledged
having received the additional allegations on July 6, 2007. In the
Memorandum, IRD requested additional information on the newly submitted
claims. Complainant also submits a September 4, 2007 electronic mail
message from him to the EEO Counselor/Program Manager in which he stated
that he was filing a discrimination complaint based on race and reprisal
regarding an assignment on the MFO ingest project and that he would be
referencing an electronic mail previously sent to her on July 23, 2007.
EEOC Regulation 29 C.F.R. � 1614.106(d) provides that complainant
may amend his complaint at any time prior to the conclusion of the
investigation to include issues or claims like or related to those
raised in the complaint. There is no evidence in the record indicating
that IRD continued its investigation of complainant's complaint after
concluding the April 2007 fact finding conference. Further, a July
11, 2007 Memorandum from the Director of DOD Agency Components to the
Office of Diversity Management and EEO (EEO Office) indicates that the
investigation was completed prior to this date as evidenced by the fact
that the completed ROI was forwarded to the EEO Office on July 11, 2007.
The record shows that on July 24, 2007, the agency transmitted the ROI
to complainant. Although complainant submitted additional claims in May
2007 by electronic mail, the agency did not send its request for inclusion
of the claims until July 2, 2007, approximately one week before IRD sent
the completed ROI to the EEO Office. However, the record also reveals
in the June 2007 electronic mail messages from the EEO Counselor/Program
Manager that the agency requested additional information from complainant
necessary to process his new allegations.
We find no bad faith or error on the part of the agency regarding its
handling of complainant's requests to amend his complaint. We have taken
note that the agency had accepted amendments to the complaint three
times previously and, also, that the EEO Office did make a request
to the IRD to include the additional claims in its investigation.
In addition, the Commission is not persuaded that complainant may not
have himself contributed to the lack of clarity concerning whether he
was seeking to amend the instant complaint or pursuing a new complaint.
He may have himself lent confusion about what he was seeking or asking.
The Commission notes that complainant provided an electronic mail
message, dated October 3, 2007, from the EEO Counselor/Program Manager to
complainant in which she wrote that complainant's "additional allegations"
would be included in the agency decision. However, it is not clear
whether she was referring to the May 2007 allegations, complainant's
September 4, 2007 electronic mail to her in which he raises other
allegations, or any other allegations not known to the Commission.
Further, as evidenced by the electronic mail messages submitted on
appeal, complainant would address his messages to several persons in
the same electronic mail message which likely led to confusion in the
orderly processing of his claims. The record does not indicate whether
the claims raised by complainant are now being processed by the agency.
Upon review, we find the additional allegations raised by complainant
in May 2007 and in September 2007, were not added as amendments to the
subject complaint. We find no error by the agency in the handling of
the May 2007 and September 2007 requests to amend and we will not address
the additional claims nor amend the complaint to include them.
Claim 1 - Performance Evaluation for 2005-2006
Although the agency stated in its decision that complainant was not
subjected to an adverse action because the performance evaluation was
favorable, the agency's position is incorrect. Here, complainant claimed
he should have received a rating higher than the one which he received.
A lower rating can, for example, affect an employee's ability to receive
awards, quality step increases, or reach their promotion potential.
Therefore, an agency's lower rating of complainant constitutes an adverse
action and states a claim.
The record reveals that at the agency an employee could receive
one of five ratings: superior, excellent, successful, marginal, or
unsatisfactory, with superior as the highest rating and unsatisfactory as
the lowest. Complainant asserts that he should have received a higher
rating than the satisfactory rating which he received. The Commission
finds, however, that complainant received a satisfactory rating because
of his performance. Complainant's supervisor stated that complainant was
not performing at the Band 4 level and was instead assigned Band 3 work;
that complainant could have performed better had he demonstrated more
initiative by being involved with technical working groups and accepted
an invitation to visit contractor sites; and that complainant did less
multi-tasking than other employees who received a higher rating during
the rating period. Complainant himself stated that he was not performing
Band 4 work. Complainant has not established by a preponderance of the
evidence that he was capable of performing Band 4 work; nor does the
record support a finding that complainant was not given Band 4 work for
prohibited reasons.
Claim 2 - Denial of Training
Complainant alleged that he was denied training which would have better
equipped him for the skill level required to perform his work. We find
that complainant has not shown by a preponderance of the evidence that
the agency was motivated by discriminatory animus when he did not receive
requested training.
Complainant's supervisor acknowledged that there were funding issue
problems and unintentional clerical mistakes regarding requested training
which could have affected some of complainant's training requests.
However, he also stated that he approved all of complainant's training
requests.
Complainant's third level supervisor stated that complainant submitted
a training request for RGIS 1 and RGIS 2 after the funding deadline
and that request was the one which he had received from complainant.
He also stated that RGIS 1 and 2 were basic GIS skills that a cartographer
should have, that it could be learned on an employee's own time, or
complainant could have worked on GIS in his spare time to obtain the
training. He also stated that employees could take training through
distant learning and virtual training through the agency's ESR1 campus.
He stated further that formal vendor training was not the only avenue
from which he could acquire knowledge of RGIS.
The record discloses that the agency approved other training requests
for complainant and also allowed him to be mentored by a Band 4 employee
with whom complainant was confident. There is also evidence in the
record which indicates that complainant cancelled previously approved
training.
Here, the preponderance of the evidence does not establish discriminatory
animus. Proving pretext requires that the complainant show that
discriminatory reasons more likely motivated the agency, or that the
agency's proffered explanations are not credible. Further, it is not
sufficient "to disbelieve the employer; the fact finder must believe the
plaintiff's explanation of intentional discrimination." St. Mary's Honor
Center v. Hicks, 509 U.S. at 519. We find complainant did not meet his
burden of establishing discrimination.
Claim 3 - Critical Elements and New Mandatory Training Requirement
Complainant alleges that when his supervisor gave him his performance plan
his supervisor failed to tell him that his critical elements included
a requirement to take 80 hours of training annually. The record reveals
that complainant's supervisor stated that when he met with complainant
concerning his performance plan, he was not aware of an 80-hour training
requirement and that he first learned of the requirement at a conference
which he attended the following day.
Complainant has not shown how the agency's failure to inform him
immediately about the requirement harmed him. Even assuming that it did,
other than complainant's unsupported assertions, there is no evidence
that the information was in fact withheld or if withheld, it was done
for discriminatory reasons.
Claim 4 - Bonus
The agency has articulated legitimate, nondiscriminatory reasons for
not awarding complainant a bonus. We find that bonuses were limited to
43 percent of each Directorate's employees and were highly competitive.
Complainant has not shown that he met the criteria to obtain a bonus.
Moreover, the record establishes that complainant was not performing
Band 4 work and needed to develop the skill set to perform Band 4 work.
Claim 5 - February 21, 2007 Incident with Supervisor
In an amendment to his complaint, complainant stated that he was engaged
in a conversation with his supervisor in his open cubicle concerning
restoration of two hours of annual leave for which he was over charged.
He stated that the conversation shifted suddenly "180 degrees" with his
supervisor when, out of nowhere, his supervisor stated that he had to
protect himself against complainant because he did not know whether
complainant would file a complaint against him like the one that
complainant had recently filed.
Complainant stated that his supervisor raised his voice at him and told
him that complainant caused him anxiety and that he would leave before
allowing complainant to put him through what a previous supervisor had
gone through with complainant. He also stated that his supervisor told
him that complainant's EEO activity was currently taking up so much
of his time that he did not have time for anybody else in the Branch.
Complainant stated that his supervisor was yelling when he walked away
and that he told complainant that in all of his 20 years at the agency,
no employee had put him through what complainant had put him through.
He stated that his supervisor's tone was loud and threatening and
occurred in complainant's open cubicle and that he was sure that the
conversation was overheard by Employee A and Employee B and anyone close
to his cubicle.
Complainant's supervisor stated that he was getting tired of complainant's
timesheets needing corrections each pay period and that complainant's
conduct had become a hassle. He stated further that the hassle was
getting to him a little bit and he told complainant a few other things
that bothered him during a four-minute discussion on February 21, 2007.
Complainant's supervisor admitted telling complainant that the EEO
complaints complainant was filing was stressing him out. Complainant's
supervisor also stated that he told complainant that in his 20 years
at the National Geospatial-Intelligence Agency (NGA), no one had done
anything like what complainant had done to him.
The record reveals that complainant's third level supervisor conducted a
preliminary investigation of the February 21, 2007 incident and wrote a
report in which he stated that Employees A and B informed him that they
had not heard any yelling or heated discussion between complainant and
his supervisor.4 Complainant's third level supervisor also determined
that complainant's supervisor was provoked by complainant who threatened
to file a complaint against his supervisor if his supervisor did not
give him an excellent performance rating.
Complainant has not shown that reprisal motivated the supervisor's
decision to approach complainant to address a leave issue with him.
Participation in the EEO process, whether successfully or unsuccessfully,
does not insulate a complainant from normal workday instructions,
corrections by agency management or, as we find was the case here,
inquiries regarding leave information when the need arises.
However, the Commission has found that any action by an agency
manager that interferes with an employee's rights or has the effect
of intimidating or chilling the exercise of those rights under the
EEO statutes constitutes a per se violation. Binseel v. Department of
the Army, EEOC Request No. 05970584 (October 8, 1998) (complainant was
told that filing an EEO suit was the wrong way to go about getting a
promotion); Yubuki v. Department of the Army, EEOC Request No. 05920778
(June 4, 1993); see Burlington Northern and Santa Fe Ry. Co. v. White,
548 U.S. 53, 68 (2006). The Commission has stated that adverse actions
need not qualify as "ultimate employment actions" or materially affect
the terms and conditions of employment to constitute retaliation. EEOC
Compliance Manual, Section 8: Retaliation (May 20, 1998); Burlington
Northern and Santa Fe Railway Co. v. White, 548 U.S. 67-68 (finding that
the anti-retaliation provision protects individuals from a retaliatory
action that a reasonable person would have found "materially adverse,"
which in the retaliation context means that the action might have deterred
a reasonable person from opposing discrimination or participating
in the EEOC charge process); Lindsey v. United States Postal Service,
EEOC Request No. 05980410 (November 4, 1999). The statutory retaliation
clauses prohibit any adverse treatment which is based upon a retaliatory
motive and which is reasonably likely to deter a complainant or others
from engaging in protected activity. Id
Upon review, we find the comments made by complainant's supervisor,
that the EEO complaints complainant was filing was stressing him out
and that in his 20 years at the agency no one had done anything like
what complainant had done to him, constituted a per se violation of
Title VII, since such comments are likely to have a chilling effect and
deter employees from full exercise of their EEO rights. 29 C.F.R. �
1614.101(b). We note that an agency has a continuing duty to promote
the full realization of equal employment opportunity in its policies
and practices in every aspect of agency personnel matters. 29 C.F.R. �
1614.102. Agencies must, among other things, insure that its managers
promote and enforce a vigorous equal employment opportunity program.
Pruette v. USPS, EEOC Appeal No. 01951567 (March 3, 1998).
While we note that complainant brought the incident to the attention of
EEO Counselor-1 on the same day the incident occurred, the Commission
has found that even if a complainant successfully initiates the EEO
process in spite of the interference, the complainant is still aggrieved.
Boyd v. Department of Transportation, EEOC Appeal No. 01955276 (October
10, 1997)("[t]he mere fact that the appellant filed the instant
formal complaint does not defeat her claim of unlawful interference
with the EEO process."). Here, a supervisor was openly and heatedly
talking with complainant concerning the stress he was feeling about
complainant's discrimination complaints. We find that the comments made
by complainant's supervisor are likely to have a potentially chilling
effect and deter employees from full exercise of their EEO rights.
Claim 6 - Denial of Overtime
Complainant stated that his supervisor told employees that they would
be working overtime in the future on the Columbia NGST project to which
he was assigned and that he received an electronic mail for requests
from those employees who wished to work overtime. Complainant stated
that he requested compensatory time in lieu of overtime but his request
was denied.
The record discloses that overtime for the Columbia NGST project was
not authorized and there is no record that any other employee received
overtime or compensatory time on the project. Complainant has not shown
that the reason that the agency has articulated for not granting his
request is pretextual.
Hostile Work Environment
The Commission finds that complainant has not shown that he has been
subjected to a discriminatorily hostile work environment. An abusive or
hostile work environment exists "when the workplace is permeated with
discriminatory intimidation, ridicule and insult that is sufficiently
severe or pervasive to alter the condition of the victim's employment."
Harris v. Forkitft Systems, Inc., 510 U.S. at 17. An alteration to an
employee's working conditions exists if a tangible, discrete employment
action is taken, e.g., hiring, firing, transfer, promotion, non-selection,
or the agency's actions were sufficiently severe and/or pervasive
to create a hostile work environment. The agency has articulated
legitimate, nondiscriminatory reasons for its tangible employment actions
and the non-tangible employment actions were not sufficiently severe or
pervasive to create a hostile work environment nor were they motivated
by discriminatory animus. Complainant has not shown by a preponderance
of the evidence that the agency discriminated against him.
Reprisal
Although we have found that the conduct of complainant's supervisor
constituted per se reprisal, complainant has not established by a
preponderance of the evidence that any of the other claims he raised
was a result of his EEO activity or that the agency took the actions in
which it engaged because of retaliatory animus. Despite complainant's
assertions that the agency retaliated against him and not withstanding
our finding of per se reprisal, what the record lacks regarding the
remaining claims is preponderant evidence that the agency was motivated
by discriminatory animus. When reviewed as a whole, the record conveys
the willingness of complainant's supervisors to work with him and to
help him toward achieving the success and advancement which he desired
but their efforts and actions may not have been executed in the exact
manner or timing that complainant sought.
CONCLUSION
The agency's decision is AFFIRMED in part and REVERSED in part. The
agency shall take corrective action in accordance with this decision
and the ORDER herein.
ORDER
The agency shall take the following remedial actions:
1. Within 60 days of the date this decision becomes final, the
agency shall conduct a supplemental investigation to determine whether
complainant is entitled to compensatory damages incurred as a result of
the agency's discriminatory action. The agency shall allow complainant to
present evidence in support of his compensatory damages claim. See Carle
v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993).
Complainant shall cooperate with the agency in this regard. The agency
shall issue a final decision addressing the issues of compensatory damages
no later than 60 days after the agency's receipt of all information. The
agency shall submit a copy of the final decision to the Compliance
Officer at the address set forth herein.
2. Within 180 days of the date this decision becomes final, the agency
shall provide training to the responsible management official regarding
the obligation not to restrain, interfere, coerce, or retaliate against
any individual who exercises his or her right to oppose practices made
unlawful by, or who participates in proceedings under, the Federal equal
employment opportunity laws.
3. Within 60 days of the date this decision becomes final, the agency
shall consider taking disciplinary action against the management official
identified as being responsible for the discrimination perpetrated
against complainant. The Commission does not consider training to be
a disciplinary action. The agency shall report its decision to the
Commission and specify what, if any, action was taken. If the agency
decides not to take disciplinary action, it shall set forth the reasons
for its decision not to impose discipline.
POSTING ORDER (G0900)
The agency is ordered to post at its National Geospatial-Intelligence
Agency, Source Geospatial Operations East, Bethesda, Maryland facility
copies of the attached notice. Copies of the notice, after being
signed by the agency's duly authorized representative, shall be posted
by the agency within thirty (30) calendar days of the date this decision
becomes final, and shall remain posted for sixty (60) consecutive days,
in conspicuous places, including all places where notices to employees are
customarily posted. The agency shall take reasonable steps to ensure that
said notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington,
DC 20013. The agency's report must contain supporting documentation,
and the agency must send a copy of all submissions to the complainant.
If the agency does not comply with the Commission's order, the complainant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The complainant also has the right to file a civil action
to enforce compliance with the Commission's order prior to or following
an administrative petition for enforcement. See 29 C.F.R. �� 1614.407,
1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled "Right to File A Civil
Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013. In the absence of a legible postmark, the request
to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (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
November 4, 2009
__________________
Date
1 Although the decision itself is not dated, the record indicates that
the decision was issued at the latest on November 1, 2007, the date the
decision was mailed to complainant.
2 Complainant indicates that he mailed a copy of his statement in support
of his appeal to the agency by Federal Express.
3 The electronic mail message does not indicate what the Chief's position
was in May 2007, but the record does disclose that he was in the position
of Chief at least by July 2, 2007. However, the July 24, 2007 letter
to complainant identifies his title as an Equal Employment Opportunity
Officer. Regarding the EEO Counselor/Program Manager, the EEO Counselor's
Report, dated June 18, 2007, and a June 18, 2007 electronic mail message
indicate that the EEO Counselor/Program Manager was an EEO Counselor.
However, September 2007 electronic mail messages from her identify her
title as an OEE Program Manager. Accordingly, we have referred to her
in this decision as the EEO Counselor/Program Manager.
4 The record contains no statements from Employees A and B regarding
the February 21, 2007 incident.
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0120080665
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120080665