[Redacted], James T., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Aug 4, 2021

Appeal No. 2020002928 (E.E.O.C. Aug. 4, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 James T.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 2020002928 Hearing No. 530-2018-00135X Agency No. BOP-2017-0047 DECISION Both Complainant and the Agency filed appeals with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s February 23, 2020 final order concerning Complainant’s equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.2 For the following reasons, the Commission REVERSES the Agency’s final order, in part. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2 Complainant’s appeal was initially docketed as EEOC Appeal No. 2020002664. That appeal number was closed, and Complainant’s appeal was consolidated under the current appeal number. 2020002928 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a GS-0006-12 Discipline Hearing Officer (DHO) at the Agency’s United States Penitentiary in Big Sandy, Kentucky. On October 1, 2015 (and later amended), Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Caucasian), sex (male), age (48), and reprisal (prior protected EEO activity) when: (1) from August 28 to September 1, 2015, Agency managers harassed him by failing to restore him to his full duties; (2) on or about March 9, 2016, Agency management demoted him; (3) on or about May 3, 2016, BOP management gave him an unfairly low annual evaluation based on incorrect criteria; (4) on May 4, 2016, Agency management denied him a reasonable accommodation; (5) on or about September 6, 2016, Agency management did not select him for the position of GS-12 Unit Manager; and (6) on or about December 8, 2016, Agency management did not select him for the position of GS-12 Emergency Preparedness Officer.3 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The AJ granted the Agency’s Motion for Summary Judgment on all claims. However, the AJ found that the record contained evidence of per se reprisal. Specifically, the AJ found that the Warden’s statement made to Complainant on December 2, 2014 (i.e., while Complainant could file an EEO complaint over the investigation and the subsequent demotion, he would hate to see Complainant throw his money away) constituted per se reprisal. A hearing to determine damages on the finding of per se retaliation was held on October 22, 2019. Following the hearing, the AJ ordered the Agency to pay Complainant non-pecuniary compensatory damages in the amount of $10,000 and attorney’s fees in the amount of $1,000. In addition, the AJ ordered training and the posting of a notice of discrimination. On February 23, 2020, the Agency issued its final order which adopted the AJ’s findings with respect to Claims (1) - (6) but rejected the AJ’s finding of per se reprisal and the relief awarded. The Agency’s appeal brief specifically discusses the merits of the finding of per se retaliation and the $10,000 compensatory damages award.4 3 Complainant voluntarily withdrew an additional claim. 4 The Agency fails to raise any argument with respect to attorney’s fees or any portion of remedy awarded to Complainant other than compensatory damages. In addition, we note that Complainant fails to raise any arguments on appeal. 2020002928 3 UNDISPUTED FACTS On July 17, 2013, allegations of misconduct were referred to the Office of Inspector General (OIG) regarding Complainant’s improper use of a government purchase card and associated misconduct. At the end of August 2013, Complainant was placed under investigation by OIG. From the time he was placed under investigation by OIG, Complainant was no longer allowed to conduct hearings in accordance with his position as a DHO or conduct his supervisory duties. On March 29, 2014, the Agency received OIG’s report sustaining misconduct allegations of Falsification of Documents, Theft/Misuse of Government Property, Theft/Misuse of Government Funds, and Misuse of a Government Charge Card. On July 7, 2014, the Agency issued a proposal to terminate Complainant. On August 6, 2014, Complainant issued a response opposing the termination proposal. On November 24, 2014, Complainant was issued a decision to demote him to Recreational Specialist.5 On or about December 3, 2014, Complainant raised his concerns with the Warden (W1) that he was subjected to discrimination based on his race. W1 responded to Complainant that he had a right to file an EEO complaint based on his alleged differential treatment in the disciplinary process, but he would “hate to see you throw your money away.” On January 25, 2015, the decision to demote Complainant was rescinded and, thereafter, Complainant withdrew his MSPB appeal. On March 31, 2015, Complainant was issued an overall rating of “Achieved Results” in the position of DHO. On October 1, 2015, Complainant filed his first EEO complaint (Agency No. BOP-2015-02250). On November 12, 2015, the Discipline Hearing Officer (S1) (Complainant’s first-line supervisor) notified Complainant via letter of a proposal to remove him based on the OIG report. However, on March 9, 2016, the Deputy Regional Director (S3) notified Complainant that the Agency had made the decision to demote Complainant to a Recreational Specialist GS-9 based upon substantiated evidence of misconduct.6 On March 17, 2016, Complainant sustained an injury at work. On March 31, 2016, Complainant was issued an overall rating of “Achieved Results” in the position of Recreational Specialist, GS- 09.7 Complainant was released to full duty with no physical restrictions as of April 15, 2016. On or about April 18, 2016, Complainant was out of work for two weeks due to an injury. 5 Complainant appealed the decision to demote him to the Merit Systems Protection Board (MSPB). 6 The evidence uncovered by OIG established that over at least a four-year period, Complainant had used his government issued credit card on numerous occasions to make unauthorized purchases and kept the proceeds. 7 The duties that Complainant was rated on for fiscal year April 1, 2014 through March 31, 2015 as compared to those he was rated on for fiscal year April 1, 2015 through March 31, 2016, were the same, but the titles were different. 2020002928 4 Complainant returned to work with light duty restrictions on or about May 2, 2016. At the May 4, 2016, Office of Workers’ Compensation Programs (OWCP) meeting Complainant’s case was discussed and it was determined that Complainant’s restrictions were too limiting for him to be on the job. Complainant’s Continuation of Pay (COP) expired on May 6, 2016 and he began Leave Without Pay (LWOP) on May 7, 2016. On June 1, 2016, the OWCP held a meeting and decided to reinstate Complainant, beginning June 3, 2016, in a Limited Light Duty capacity in his current position of Recreational Specialist given the moderate restrictions Complainant presented from his physician. Complainant was released to work with no restrictions on June 28, 2016. Complainant filed a second EEO complaint on November 18, 2016 (Agency No. BOP- 2017-0047). On or about December 8, 2016, Complainant applied to the position of Unit Manager, Vacancy Announcement No. MXR-2016-0142, but did not make the Best Qualified List (BQL). On or about January 5, 2017, Complainant applied to the position of Emergency Preparedness Officer, Vacancy Announcement No. MXR-2017-0007 but did not make the BQL. ANALYSIS AND FINDINGS In rendering this appellate decision with respect to the claims decided on summary judgment, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination/retaliation occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. 2020002928 5 At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, the party opposing it must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. We find that neither Complainant, nor the Agency has presented disputed material facts as set forth below. Disparate Treatment Complainant must satisfy a three-part evidentiary scheme to prevail on a claim of disparate treatment discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, Complainant must establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Second, the burden is on the Agency to articulate a legitimate, nondiscriminatory, reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Third, should the Agency carry its burden, Complainant must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the Agency were not its true reasons, but were a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804; St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); see Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 144 (2000) (applying McDonnell Douglas paradigm to private sector ADEA claim). The elements of a prima facie claim need not be addressed when the Agency has articulated a legitimate, nondiscriminatory reason for its action(s). The factual inquiry can proceed directly to the third step of the analysis - whether complainant has shown by a preponderance of the evidence that the Agency’s actions were pretext, and ultimately, whether the Agency was motivated by discrimination. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transp., EEOC Request No. 05900159 (June 28, 1990). Therefore, we will assume Complainant has established a prima facie case on all claims. The record shows that the Agency articulated legitimate, non-discriminatory/retaliatory explanations for each claim raised by Complainant. Specifically, with respect to Claims 1 and 2, the Agency asserted that Complainant was restricted from performing all aspects of his DHO position at the time because he was actively being investigated for misconduct. The Agency further stated that Complainant was demoted because following a thorough investigation, OIG sustained the charges of misconduct. The Agency added that it initially proposed that Complainant be terminated due to the offenses, but ultimately decided to mitigate the proposed penalty to a demotion from his GS-12 DHO position, to that of a GS-9, Recreational Specialist. 2020002928 6 With respect to Claim 3, the Agency asserted that Complainant’s overall rating of “Achieved Results” had not changed from the prior year. The Agency further explained that Complainant was not rated on the performance of conducting hearings because he had not performed this duty during the relevant timeframe. With respect to Claim 4, the Agency argued that Complainant was not denied a reasonable accommodation after he sustained an injury but was granted it as soon as Complainant provided the necessary medical documentation, and further, implemented a schedule change at Complainant’s request. Regarding Claims 5 and 6, the record shows that Complainant did not make the BQL for either position. The Agency submitted testimony that for the Unit Manager position, Complainant scored only 80.46 and the cutoff score was 91.82. The Agency additionally submitted testimony that for the Emergency Preparedness Officer Position, the BQL cutoff score was 87.82 and Complainant only received a score of 81.38. The Agency explained that the BQL score was determined by taking the average score of the applicants in the competitive group. Applicants whose score exceeded the average were within range for review. These applicants then have their eligibility and qualifications validated by a Human Resource Specialist. Applicants whose scores were above the average and were determined to be qualified were placed on a BQL for consideration. Since Complainant did not make the BQL for consideration, the selecting officials could not have selected him for either position. With respect to Complainant’s claim that he was denied an accommodation, the undisputed record shows that Complainant was accommodated once he provided management with updated medical documentation with less restrictive limitations and there were available duties he could perform. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 9, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256. Complainant generally argues that the penalty issued by the Agency for his misconduct was unfair. Additionally, Complainant states that he was given a lower performance evaluation as pretext for discrimination because there was no reason offered why he could not perform his full duties while under investigation. We note that mere allegations, speculations, and conclusory statements, without more, are insufficient to create a genuine issue of material fact. See Lee v. Dep't of Homeland Sec., EEOC Request No. 0520110581 (Jan. 12, 2012) (citing to Baker v. U.S. Postal Serv., EEOC Appeal No. 01981962 (June 26, 2001), req. for reconsid. den’d, EEOC Request No. 05A10914 (Oct. 19, 2001)). The record is devoid of evidence that the explanations provided by the management officials were false or otherwise motivated by discriminatory or retaliatory animus. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant's favor. 2020002928 7 Upon careful review of the AJ's decision and the evidence of record, as well as Complainant's arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated or retaliated against by the Agency as alleged as to these claims. Denial of Reasonable Accommodation To the extent that Complainant alleges that he was denied a reasonable accommodation in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., our review of the record supports that Complainant failed to demonstrate that the Agency violated the Rehabilitation Act. To establish that he was denied a reasonable accommodation, Complainant must show that: (1) he is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) he is a “qualified” individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide him with a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance), EEOC Notice No. 915.002 (Oct. 17, 2002). Assuming that Complainant is an individual with a disability, Agency officials affirmed that initially, in May 2016, there was no work available Complainant could perform within his restrictions. On June 1, 2016, the OWCP held a meeting and decided to reinstate Complainant, in a Limited Light Duty capacity in his current position of Recreational Specialist based on the updated restrictions Complainant presented from his physician. Complainant was released to work with no restrictions on June 28, 2016. On the basis of the evidentiary record before us, we find that the Agency did not deny Complainant reasonable accommodation in violation of the Rehabilitation Act. Per Se Reprisal Comments that, on their face, discourage an employee from participating in the EEO process violate the letter and of the EEOC regulations and evidence a per se violation of the law. Binseel v. Dep’t of the Army, EEOC Request No. 05970584 (Oct. 8, 1998) (complainant was told that filing an EEO suit was the wrong way to go about getting a promotion); Woolf v. Dep’t of Energy, EEOC Appeal No. 0120083727 (June 4, 2009), (per se violation found when a labor management specialist told the complainant, “as a friend,” that his EEO claim would polarize the office); Vincent v. United States Postal Serv., EEOC Appeal No. 0120072908 (Aug. 3, 2009), req. to reconsid. den’d, EEOC Request No. 0520090654 (Dec. 16, 2010) (per se violation found when supervisor during an employee meeting referenced that EEO complaints had been filed and said “what goes around, comes around”). In the instant case, Complainant claimed that W1 tried to dissuade him from engaging in protected activity by telling him that he would “hate to see [Complainant] throw [his] money away.” 2020002928 8 Complainant testified that this occurred during the same conversation where Complainant told W1 that he felt he was being treated differently by receiving harsher punishment than his similarly situated coworkers who were not Caucasian. The AJ found W1’s statement to be undisputed by the Agency and accordingly, concluded it to constitute per se retaliation. The Agency asserts that Complainant testified about this conversation prior to W1’s interview, but W1 was not asked about the comments during his EEO investigative interview. The Agency also notes that W1 was not reachable after his retirement from service to answer any questions about the alleged comments to provide any additional clarification. The Agency, therefore, claims it was not possible to dispute the conversation at issue herein. The Agency also argues that Complainant’s testimony on this issue is not credible. We find that the Agency’s explanation for failing to produce testimonial or documentary evidence directly contradicting or denying the conversation at issue lacks merit. It is the Agency’s burden to produce evidence raising a genuine dispute of a material fact. It failed to do so. We note that the record shows that most of W1’s responses were either “I am not aware” or “I don’t know.” Yet, the record consists of testimony from witnesses that W1 had knowledge of matters to which W1 failed to address in his testimony. It is clear from the record that W1 was not willing to fully participate in the investigation of Complainant’s complaint, even before he retired. It is the Agency’s burden to ensure that its responsible management officials participate in the EEO process and it is the Agency’s burden in this case to present evidence that disputes Complainant’s allegations. It did not do so in this case. We also find that W1’s comments were reasonably likely to deter Complainant from engaging in the EEO process. Accordingly, we agree with the AJ’s conclusion that per se retaliation has been established herein. REMEDIES Following the AJ’s finding of per se reprisal, a limited hearing on damages took place. Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. Nat’l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether, or not a hearing was held. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony, or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). 2020002928 9 Non-pecuniary Damages Non-pecuniary losses are losses that are not subject to precise quantification, i.e., emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, injury to character and reputation, injury to credit standing, and loss of health. See Enforcement Guidance on Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.302, at 10 (July 14, 1992). There is no precise formula for determining the amount of damages for non-pecuniary losses except that the award should reflect the nature and severity of the harm and the duration or expected duration of the harm. See Loving v. Dep't of the Treasury, EEOC Appeal No. 01955789 (Aug. 29, 1997). The Commission notes that non-pecuniary compensatory damages are designed to remedy the harm caused by the discriminatory event rather than to punish the agency for the discriminatory action. Furthermore, non-pecuniary compensatory damages should not be motivated by passion or prejudice or be “monstrously excessive” standing alone but should be consistent with the amounts awarded in similar cases. See Ward-Jenkins v. Dep't of the Interior, EEOC Appeal No. 01961483 (Mar. 4, 1999). Evidence from a health care provider or other expert is not a mandatory prerequisite for recovery of compensatory damages for emotional harm. See Lawrence v. U.S. Postal Serv., EEOC Appeal No. 01952288 (Apr 18, 1996) (citing Carle v. Dep't of the Navy, EEOC. Appeal No. 01922369 (Jan. 5, 1993)). Objective evidence of compensatory damages can include statements from Complainant concerning his emotional pain or suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, injury to character or reputation, injury to credit standing, loss of health, and any other non-pecuniary losses that are incurred as a result of the discriminatory conduct. Id. The AJ concluded that Complainant credibly testified to the harm that he sustained from W1’s retaliatory statement. Specifically, the AJ found that Complainant was shocked and angry upon hearing the statement. After W1’s comment, Complainant felt that no one would help him. Complainant felt that W1’s comment was a warning that he would not receive a fair outcome if he decided to move forward with an EEO complaint. W1’s comment made Complainant feel that his 25 years of service were of no value to the Agency and that he had no value as a human being. The AJ also concluded that while Complainant had a history of depression and anxiety, W1’s comment greatly increased the symptoms associated with those preexisting conditions. Complainant replayed W1's statement over and over in his mind for many months following W1’s comment. Complainant’s sense of self-worth plummeted, and this affected his home life. For example, Complainant was unable to be intimate with his wife and he contemplated suicide. Complainant also distanced himself socially, stopped going to church and stopped coaching sports. The AJ noted that while many of these symptoms resolved after approximately six months, Complainant’s testimony made clear to her that those first six months were exceptionally difficult. 2020002928 10 We find the AJ’s award of non-pecuniary damages in the amount of $ 10,000.00 supported by substantial evidence. The award is supported by the severity of the harm suffered and is consistent with prior Commission precedent. See Karlene G. v. Dep't of the Interior, EEOC Appeal No. 0120141261 (Jan. 24, 2017) ($11,000 non-pecuniary award where retaliatory discharge caused six months of financial and familial stress, humiliation, and stomach aches); Davida v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120172609 (Feb. 15, 2019) ($10,000 awarded in non-pecuniary damages when the complainant experienced intimidating discussions about EEO activity and experienced panic attacks, insomnia, high blood pressure, irritability, headaches, and feelings of isolation, although some of her documentation referred to harm unrelated to the retaliation). CONCLUSION Accordingly, based upon careful review of the evidence of record, as well as the Agency’s on appeal, we AFFIRM the Agency’s final order in PART and REVERSE the final order IN PART.8 ORDER The Agency is ordered to take the following remedial action: 1. Within 60 calendar days from the date this decision is issued, the Agency shall pay Complainant compensatory damages in the amount of $10,000. 2. Within 60 calendar days from the date this decision is issued, the Agency shall pay Complainant $1,000 in reasonable attorney’s fees and costs. 3. Within 30 calendar days from the date this decision is issued, the Agency shall provide eight hours of in-person or interactive EEO training to management officials working at the facility, with an emphasis on unlawful retaliation. 4. The Agency shall post a notice in accordance with the paragraph below. The Agency shall submit a report of compliance in digital format as provided in the statement entitled “Implementation of the Commission's Decision.” The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further, the report must include supporting documentation of the Agency's action. 8 We again note that Complainant failed to raise any argument on appeal. 2020002928 11 POSTING ORDER (G0617) The Agency is ordered to post at its Bureau of Prisons, United States Penitentiary, Big Sandy, located in Big Sandy facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 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 as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). ATTORNEY'S FEES (H1019) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she/he 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 receipt of this decision. 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 (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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). 2020002928 12 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. 2020002928 13 Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 (T0610) 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations August 4, 2021 Date