0120090536
03-06-2009
Sharon-Lee Diaz, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, Agency.
Sharon-Lee Diaz,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
Agency.
Appeal No. 0120090536
Agency No. F076279
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's September 19, 2008 final decision concerning
her 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.
At the time of the events at issue, complainant was employed by the
agency as a Language Analyst at the FBI's Field Office in Washington,
D.C. On January 22, 2007, complainant filed an EEO complaint alleging,
in brief, that she was subjected to a hostile work environment on the
bases of sex (female) and reprisal for prior protected EEO activity under
Title VII of the Civil Rights Act of 1964 when her supervisor sexually
harassed her on a continuous basis from August through December 2005,
and when, from February through August 2006, he continued to entered
her work area even after being ordered not to do so and made threatening
and derogatory remarks to complainant.
Following its investigation into the complaint, the agency issued a final
decision concluding that the evidence supported a finding that complainant
was subjected to sexual harassment as alleged. The agency also issued an
order of relief which included restoration of leave taken because of the
harassment, entitlement to reasonable attorney's fees and compensatory
damages (to be determined), EEO training for the responsible supervisor,
and a posting notice.
Complainant filed the current appeal to "preserve her rights" to complete
relief because the agency had not yet granted her all the relief to
which she was entitled. Complainant also appealed the finding by the
agency that she had not established her claim of reprisal.
The record reflects that as of December 12, 2008, the agency had not
restored all of complainant's leave, it was reviewing the demand for
attorney's fees, it had not yet determined the appropriate amount
of compensatory damages, and that the supervisor involved had yet to
undergo training. The agency indicated it had complied with the posting
requirement.
After a thorough review of the record, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final decision
because the preponderance of the evidence of record establishes that
discrimination occurred.1 The Commission finds particularly troubling the
agency's admission in its final decision that "FBI management officials
were all aware of [the supervisor's] harassing conduct even before
complainant reported it." To remedy the discrimination, the agency is
directed to comply with the Order as set forth below.
ORDER
The agency is ordered to take the following remedial action:
1. The agency shall restore all leave complainant used because
of the harassment within 60 days of the date this decision becomes
final. Complainant shall cooperate with the agency in determining the
number of hours of leave to which she is entitled.
2. Complainant is entitled to an award of reasonable attorney's fees
and costs. The record indicates that her attorney has already submitted
his request for attorney's fees to the agency. Thus, within 60 days of
the date this decision becomes final the agency shall either pay the
amount requested or pay any undisputed amount and issue a decision on
the disputed amount with appropriate appeal rights to the Commission.
3. Complainant is entitled to compensatory damages and has submitted
her request to the agency. Within 60 days of the date this decision
becomes final the agency shall either pay the requested amount, or pay
any undisputed amount and issue a decision on the disputed amount with
appropriate appeal rights to the Commission.
4. The agency is strongly urged to consider disciplinary action against
the supervisor involved, up to and including termination.2 If the
supervisor is retained, the agency should consider whether or not
he should retain supervisory authority. The agency shall inform the
Commission of its decision and its reasons therein.
5. All agency management officials who knew about the inappropriate
actions of the supervisor even before complainant reported it and failed
to take prompt and effective corrective action shall be provided with
EEO training on the prevention of harassment in the workplace and their
responsibilities therein. The training shall take place within 60 days
of the date this decision becomes final.
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 verifying
that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 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 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.
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.
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 (R0408)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1008)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. �� 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time
limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 6, 2009
__________________
Date
1 To the extent complainant seeks a finding of reprisal in addition to
sex discrimination, the Commission finds it is not necessary to address
the matter because she would not be entitled to any additional relief.
2 The Commission notes that the record indicates that the supervisor
involved had a long history of inappropriate behavior and had been
moved from office to office despite repeated complaints concerning his
behavior. He had been counseled on numerous occasions regarding his
behavior.
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0120090536
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120090536