01966574
10-03-2000
Shawna R. Jones, Complainant, v. William M. Daley, Secretary Department of Commerce, Agency.
Shawna R. Jones, )
Complainant, ) Appeal No. 01966574
) Agency Nos. 95-61-0243
v. ) 95-61-0301
) 95-61-0416
)
William M. Daley, )
Secretary )
Department of Commerce, )
Agency. )
______________________________)
DECISION
INTRODUCTION
On September 7, 1996, Shawna R. Jones (hereinafter referred to as
complainant) timely appealed the final agency decision (FAD), received
on August 10, 1996, that it did not discriminate against her based on
her race (African American), sex (female), and retaliation when she was
allegedly harassed and subjected to various discriminatory actions by
agency officials.<1> See Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. �2000e et seq. We accept complainant's appeal
pursuant to EEOC Order No. 960, as amended. For the reasons that follow,
the agency's decision is AFFIRMED in part and REVERSED in part.
ISSUE PRESENTED
The issue presented is whether complainant has been subjected to the
harassment and discrimination alleged below by the agency based on her
race, sex, and in reprisal for her prior EEO activity.
BACKGROUND
On March 14, April 29, and September 8, 1995, respectively, complainant
filed formal EEO complaints against the agency, raising 14 claims
of discrimination.<2> The agency conducted separate investigations
of complainant's complaints and complainant failed to request a
hearing. Thereafter, the agency issued a consolidated FAD on the
complaints which found that complainant failed to prove that she was
subjected to a harassing hostile work environment or discrimination
on a prohibited basis. In its decision, the agency stated that the
investigations indicated that the complainant and the Responsible Official
(RO)(Black male) had a deep and unresolvable personality conflict
stemming from the removal of complainant's previous supervisor and mentor,
and that agency officials, complainant and her coworkers all had roles
in perpetuating a climate of hostility, suspicion, and resentment. The
agency found, however, that the record did not support a conclusion
that complainant's race, sex, or protected activities were factors in
her treatment. It is from this decision that complainant now appeals.
On appeal, complainant asserts that the agency's FAD is biased and
one-sided, that the agency's failure to present testimony from her former
mentor is suspicious and probative of discrimination, and that the fact
that other individuals have filed race and sex discrimination claims
against the RO should be considered. Complainant further raises various
allegations concerning the inadequacy of the agency's investigations of
her claims. In response, the agency asserts that the mentor's refusal
to testify due to an agreement she entered into with the agency does
not warrant drawing an adverse inference because there is no showing of
agency bad faith. The agency further asserts that this witness would not
offer material testimony because she was reassigned prior to the events
alleged in complainant's complaint. With regard to alleged deficiencies
in the investigation and bias in its FAD, the agency responds in detail
to complainant's assertions and notes that complainant failed to request
an administrative hearing during which any such deficiencies could have
been cured.
ANALYSIS AND FINDINGS
Initially, we respond to complainant's allegations on appeal regarding
alleged deficiencies in the investigation of her complaints. We have
thoroughly reviewed the record herein and find that it provides an
adequate foundation upon which to issue a decision on all aspects
of complainant's complaints currently before us. To the extent that
complainant believes that additional witness testimony would have enhanced
her capacity to prove her claims herein, she declined to exercise her
right to an administrative hearing at which such additional testimony
could have been secured. Moreover, we have duly considered the fact that
several complaints have been filed against the RO,
as well as taking into account her mentor's refusal to provide relevant
testimony in arriving at our decision herein.<3>
Complainant was, at the time of the subject events herein, a
GS-12 Telecommunications Policy Analyst (Analyst) with the Minority
Telecommunications Development Program (MTDP) in the Office of Policy
Analysis and Development (OPAD), at the NTIA's Washington D.C. office.
The MTDP unit was comprised of a GS-15 (Black female) Director (D1),
a GS-9 (Black male) (Analyst 1), a GS-11 (Black female) (Analyst 2),
a GS-12 (Black female) Analyst (complainant), and a GS-5 (Black female)
(Analyst 3). The record indicates that Analysts 2 and 3 have also filed
EEO complaints based on the events herein.
Upon review of the record, and as discussed below, we find that
complainant has failed to establish that the actions she complained of
were either sufficient to establish a sex or race based hostile work
environment or were motivated by discriminatory animus based on her race
or sex. Concerning each action, the agency provided a nondiscriminatory
explanation, that complainant failed to prove to be a pretext for race or
sex discrimination. With regard to complainant's allegations of reprisal,
however, we find that complainant proved intimidation amounting to a
violation of Title VII (allegations 4 and 5) and proved that the stated
reason for denying her a bronze medal (allegation 10) was a pretext
for retaliation.<4>
Allegations 1-3 and 6 (Harassment Allegations)
On or about December 9, 1994, the RO removed D1 from her position. No
information is provided by the agency concerning the basis for this
action. On December 14, 1994, the Acting Director, who had been asked
by the RO to serve in this position, met with the staff of the MTDP to
inform them of D1's reassignment, her own leadership and an impending
reorganization. All witnesses characterized this meeting as tense and
unpleasant. MTDP staff was apparently upset by the RO's abrupt removal
of D1. Complainant, as the senior staff member, had expected to be
asked to become Acting Director and Analyst 3 was not pleased at being
told that she would now be responsible for preparing the newspaper
"clips." Two Special Assistants who attended the meeting reported
that staff members exhibited hostile body language at the meeting,
which included eye-rolling and folded arms. Later on the same date,
complainant was called to the RO's office where, according to the accounts
of the RO and the Special Assistants, she was told by the RO that he
expected the MTDP staff to accept the Acting Director's supervision
without disrespectful behavior. Complainant was upset by the suggestion
that she had been disloyal and started to cry. The RO confirmed that MTDP
would be responsible for the "clips," and stated that as the RO, he had
the authority to make those personnel decisions he deemed appropriate.
Complainant characterized the RO's behavior during this meeting as
threatening towards her and MTDP staff. She alleged, inter alia, that
the RO personally threatened her with adverse actions, yelled at her,
intimidated her and threatened her in front of others. She claimed that
he reminded her that "no one outranked him other than the Secretary of
Commerce and the Vice President" and told her to take his message to
the rest of MTDP. (Allegations 1 and 3). In allegation 2, complainant
asserted that the RO favored attractive female employees who go along
with his general harassment of women and in allegation 6, complainant
raised unspecified allegations of sexual harassment.
The affidavits from complainant and various witnesses fail to establish
that the RO's comments at the above cited meeting were examples of
negative treatment of Black employees and women. The statements of
witnesses present at the subject meetings, indicate instead that the
RO was disturbed by what he believed to be insubordinate behavior with
regard to his newly appointed Acting Director (Black female). While the
abrupt removal of D1 and the RO's subsequent meeting with complainant may
have exacerbated a difficult situation, there is insufficient evidence
that the RO's treatment of complainant was motivated by considerations
of her race or sex.
In support of complainant's claims of race and sex based harassment,
she asserted and Analyst 1, Analyst 2, and Analyst 3 corroborated that
the RO was more familiar in his speech with Black employees. They averred
that the RO sometimes used colloquial English and slang in speaking with
them. Other agency witnesses indicated either that they did not witness
such conduct or that they did not find it offensive, characterizing the
RO's familial manner as friendliness. Analyst 1 averred that he observed
the RO speak with Black employees and stated that, while he thought he
spoke with them in a more casual manner, he would not characterize it as
offensive. Complainant also alleged, but did not present corroborative
evidence, that the RO made derogatory remarks about Black people.<5>
Complainant, Analyst 2, and Analyst 3 averred generally that the RO
was derogatory toward women, often screaming at them and harassing
them, dominating them and seemingly happy to see them break down and
cry. These witnesses did not cite specific instances or examples of
such conduct, except for an incident on October 3, 1994, involving an
oral altercation between the RO and Analyst 2 concerning the proper
procedures for placing his signature on training certificates. Analyst
2 named several witnesses who had allegedly been the recipients of
allegedly harassing conduct from the RO. The EEO Investigator reported
that she spoke with these witnesses, who did not corroborate complainant's
assertions, but failed to get sworn statements from them. ROI1, ex. 22.
The RO denied harassing female employees and averred that he had been
no more familiar with complainant than was completely appropriate in
a business environment. He asserted that his level of informality with
complainant was justified based upon complainant's prior overtures to
him before and after his appointment, in which she had written him notes
expressing her solidarity with him. ROI1, ex. 12.
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion is
unlawful if it is sufficiently patterned or pervasive. McKinney v. Dole,
765 F.2d 1129, 1138-39 (D.C. Cir. 1985). The conduct in question is
evaluated from the standpoint of a reasonable person, taking into
account the particular context in which it occurred. See Highlander
v. K.F.C. National Management Co., 805 F.2d 644 (6th Cir. 1986). See also
Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment
by Supervisors, No. 915.002 (June 18, 1999).
Based on the foregoing, the record does not support a finding that
the severity and pervasiveness of the RO's alleged conduct rose to
the level necessary to create a racially or sex based hostile work
environment. First, most witnesses averred that they either did not
notice the RO's familiar manner with Black staff members or were not
offended by it. Also, the record indicated that in those instances where
the RO was informed that such familiarity was unwelcome, he stopped the
conduct immediately. The racially derogatory remarks complainant alleged
the RO made are not sufficiently corroborated by other witness testimony.
We further find that complainant's claims that the RO screamed at and
berated women are too general in nature to demonstrate that the RO
subjected women to a sex based hostile work environment. While Analyst
2 and Analyst 3 support complainant's generalized claims, they are also
rendered less credible by the clear interest they both have in the outcome
of this case given their own initiation of EEO complaints on related
matters. Moreover, the sole specific incident cited concerning the RO's
altercation with Analyst 2 has not been sufficiently shown to be related
to her race or gender. Other agency witnesses do not corroborate gender
based negative treatment of employees and instead indicate that the RO
treated women in a favorable manner by hiring and promoting many of them.
Allegation Nos. 4 and 5
On December 15, 1994, complainant met with an employee in the agency's
Office of Civil Rights (OCR) to obtain information about the EEO
process. Complainant claims that she requested that this meeting be held
in a confidential manner. Two hours later, the Acting Director approached
her and asked whether she had filed an EEO complaint. The RO came into
her office shortly thereafter, and also made that inquiry. Complainant
asserts that he told her, inter alia, that he had just learned about
it from "a friend of a friend"; that "everyone knows that disgruntled
employees file law suits and that he could destroy [complainant]";
that he could send out a press release: "Disgruntled Employee's Office
Reorganized"; that the agency would pay for his attorney; and that he
would surely win and would "beat [her] hands down." ROI1, ex. 11. The
RO acknowledged visiting complainant after he learned from secretarial
"rumor" that she was considering a complaint. He denied threatening her
if she filed a lawsuit, but indicated that he did say that "look, this
stuff is baseless," that either he or the agency would hire an attorney
to defend him, and that he would "win this" because the allegations were
untrue. ROI1, ex. 12.
Complainant asserted that on the next day, December 16, 1994, the Acting
Associate Administrator for the Office of Policy Analysis and Development
(the AA) came into her office and asked her if she had filed or planned
to file a suit against the RO. She claimed that after she told him she
had just gotten information from OCR on her rights, he stated that filing
a suit would be like a "nuclear attack," that if she wanted to file a
suit she should make sure she could win, that the RO was "ruthless" and
would use everything legal and illegal to discredit her case, and that
he advised her to wait awhile and collect the information she needed,
but "don't do this now." ROI1, ex. 11. The AA averred that while he
denied attempting to discourage complainant and others, he recalled
telling them that if they were going to do it, they had to do it all the
way. He stated that he "cautioned them not to bring a grievance until
they thought they could handle what they were up against." ROI1, ex. 15.
With regard to allegation Nos. 4 and 5, our review of the record
indicates that complainant has proven that the conduct at issue amounts
to impermissable restraint and interference with the EEO process in
violation of Title VII. See 29 C.F.R. �1614.105(g); Crespo v. U.S. Postal
Service, EEOC Request No. 05920842 (September 17, 1993). In Crespo,
the Commission observed that Agencies have the duty to, inter alia,
"insure that managers and supervisors perform in such a manner as to
effectuate continuing affirmative application and vigorous enforcement
of the policy of equal opportunity." Id. The three separate visits to
complainant's work area by three different members of NTIA management
shortly after her initial visit to the OCR were intimidating in nature
and clearly qualify as overt attempts to discourage her from using the
EEO process. Even if we credit the RO's version of what occurred, both
the fact that his visit followed so swiftly on the heels of complainant's
OCR activity and the substance of his acknowledged remarks are implicitly
intimidating, especially given the relative balance of power between
him and complainant (a GS-12 nonsupervisory employee). In view of our
holding herein, we will order that all agency officials involved in
these violations receive training in their responsibilities under the
Commission's regulations to refrain from such restraint on employees'
exercise of the EEO process.
Allegation Nos. 7-10
With regard to allegation Nos. 7-10, which relate to the general work
environment under the supervision of the Acting Director, (alleged
assignment of menial tasks and removal of managerial responsibilities,
imposition of travel restrictions, denial of accurate information and
denial of speaking engagements) we do not find that the evidence indicates
that any of the cited actions were motivated by race, sex and/or reprisal
discrimination. Instead, the investigation indicates that the difficulties
experienced by complainant during Acting Director's supervision of the
unit, arose as a result of poor interpersonal relations between the
Acting Director and complainant. These conflicts had their genesis
in the preexisting conflict between D1 and the RO, which ultimately
extended to the subordinate staff members. In particular, with regard
to work assignments, the agency indicated that complainant was assigned
other duties by the Acting Director, and that Analyst 3 (a GS-5 TPA),
and not complainant, was given the responsibility for compiling the
"clips." Moreover, the Acting Director indicated that she did assign
complainant, who was in a nonsupervisory position, to acting supervisory
duties for at least a one month time period. Travel was limited only as a
result of budgetary considerations and complainant's speaking engagements
were not generally curtailed. On the sole occasion that agency officials
denied complainant a moderator assignment in favor of an employee from
another agency, agency officials explained that the action was taken in
order to foster inter agency relations.
Allegation No. 11.
We do find, however, that complainant has proven that the agency's
stated reason for denying her a bronze medal is a pretext for retaliatory
motivation.<6> We reach this conclusion based on several unexplained
inconsistencies in the treatment of the candidates and in the testimony
of agency witnesses that effectively undercut the credibility of the
stated reason for the denial of the award.
As a legitimate nondiscriminatory reason for the agency's failure to
award complainant the bronze medal, the Acting Director averred that
complainant did not receive an award because she failed to meet the
established criteria of either working on more than two hearings or
working on one and chairing another. The RO also averred that he did not
remove complainant's name from consideration but merely approved a list
of candidates submitted to him by either his Deputy Assistant Secretary
(DAS) or his former Chief of Staff (CS).<7>
First, we observe that the only MTDP staff member to receive a bronze
medal for work on the universal service hearings project was Analyst
1. Analyst 1 was also the only individual in the unit who did not file
an EEO complaint against the RO. Analyst 1 averred that complainant had
participated in the universal service hearings to the same degree that he
did, yet she failed to receive the award. The agency does not explain the
basis for this disparity in treatment. The AA averred that he nominated
D1, complainant, Analyst 1, Analyst 2 and others for the Bronze Medals
and submitted the nomination to the CS. He indicated that everyone on
his list was approved except D1, complainant, and Analyst 2. Moreover,
the AA stated that these individuals clearly met the criteria cited by
the Acting Director. He also averred, without rebuttal, that the Acting
Director told him that counsel had advised the RO not to award those
three individuals bronze medals because it could be used against him if
they sued him. ROI3 Ex. 20.
The EEO investigator indicated in ROI3, ex. 22, that the DAS told her
that he had convened a committee which failed to recommend complainant
and others. Notwithstanding this representation, however, the Chair
of the panel that reviewed and made recommendations among the nominees
indicated to the investigator that complainant's name was never on the
list forwarded to him. ROI3, ex. 33. The Acting Director averred that
complainant did not receive the award because she did not meet the cited
criteria, however, complainant, the AA and Analyst 1 indicated that all
objective criteria required to secure the award were met. In addition,
both Analyst 1 and the AA also testified regarding their observations
that the RO had a propensity to retaliate against those individuals
whom he believed had not been loyal or recognized his authority
appropriately. Based on the foregoing, and with due consideration to
our previous finding that agency officials also illegally intimidated
complainant, we find that the preponderance of the evidence indicates
that the cited reason for complainant's failure to receive the bronze
medal was a pretext for reprisal discrimination.
Allegations 12-14
With regard to the remainder of the allegations at issue, we again find
that the agency articulated a legitimate nondiscriminatory reason for
the action taken that complainant failed to prove was a pretext for race,
sex or reprisal discrimination. Specifically, with regard to allegation
12(a), complainant alleged that, at an April 19, 1995 press conference,
the RO failed to credit her for four years of work on a particular report,
while instead praising the Acting Director and two non MTDP employees. The
record, however, indicates that the staff members allegedly praised by
the RO were both African American females. The Acting Director further
indicated that due to time constraints, the RO praised the entire project
team, which included those individuals in MTDP, including complainant,
who were listed on the report's title page.
With regard to complainant's allegation 12(b), that the RO directed
the removal of the names of MTDP staff from the report, there is no
indication in the record that this occurred. The report contains the
names of MTDP staff and the contractor who worked on the report stated
that the Acting Director asked him not to mention any names in his
remarks because the RO would be making acknowledgements. There is also
no indication from the record that such actions were taken based upon
discriminatory motivation. Allegation 12(c) was properly dismissed by the
agency since it is identical to allegation No. 10, herein. Allegation 13
concerns the RO's remarks at a June 1995 speaking engagement in which he
referred to several individuals on his staff as "competent minorities"
but did not explicitly include MTDP staff. The RO explained that he was
referring to those individuals whom he had hired since his appointment
rather than to existing staff members and stated that he mentioned the
MTDP unit only to indicate, truthfully, that he was in the process of
revitalizing its focus.
Allegation No. 14 concerns complainant's July 21, 1995 detail to the
Office of Spectrum Management after she engaged in a verbal confrontation
with the Acting Director. The preponderance of the evidence in the
record, including the affidavits of witnesses to the confrontation,
supports the legitimacy of the stated rationale for the reassignment;
the continuing interpersonal conflict between the Acting Director and
complainant and the Acting Director's fear for her physical safety after
complainant's conduct during the altercation.
CONCLUSION
Thus, based upon a careful review of the record, and for the foregoing
reasons, the agency's final decision is AFFIRMED in part and REVERSED
in part, as discussed above. The agency is directed to comply with the
Commission's Order set forth below.
ORDER
The agency is ORDERED to take the following remedial actions:
The agency shall afford complainant a Bronze Medal for her work in
connection with the Universal Service Hearings.
The agency is ORDERED to provide training for all supervisors, managers
and staff at the NTIA in Washington D.C. to fully inform them on the
current state of the law regarding employment discrimination, especially
the responsibility to refrain from conduct that could be characterized as
impermissible intimidation and restraint on the exercise of EEO rights.
The RO, the Acting Director, and the AA shall be required to attend this
training if they are still employed by the agency.
The agency is ORDERED to post the attached notice, as described below.
Unless otherwise specified, the agency shall accomplish each of the above
actions within sixty (60) days of the date this decision becomes final.
The agency shall conduct a supplemental investigation pertaining to
complainant's entitlement to compensatory damages. The agency shall
afford complainant sixty (60) days to submit additional evidence in
support of her claim for compensatory damages.<8> Within thirty (30)
days of its receipt of complainant's evidence, the agency shall issue
a final decision determining complainant's entitlement to compensatory
damages, together with appropriate appeal rights. A copy of the final
decision must be submitted to the Compliance Officer, as referenced below.
POSTING ORDER (G1092)
The agency is ORDERED to post at its 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 (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 19848,
Washington, D.C. 20036. 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 (Q1199)
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 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 (Z1199)
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 This decision affirms 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:
_10-03-00_________
Date Carlton M. Hadden, Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable) and the agency on:
_______________
Date
________________________
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2 The complete text of these detailed allegations is set forth in the
agency's FAD.
3While the agency is advised that its settlement with the mentor may not
properly be utilized to avoid the provision of relevant testimony in an
EEO investigation, we find that there is no showing that, in this case,
the testimony would have produced such information, because the witness
left the work environment prior to the events which occurred herein and
thus would have no personal knowledge of the incidents alleged.
4For the purpose of our further analysis of individual claims discussed
herein, we will proceed as if complainant had established a prima facie
case of race, sex and reprisal discrimination on each incident alleged
and analyze whether she met her ultimate burden of proving discriminatory
animus. See United States Postal Service Board of Governors v. Aikens,
460 U.S. 711, 714-17 (1983).
5For example, complainant asserted that the RO stated during one
conversation that he had to move because there were too many "home boys"
hanging around on the corner in his old neighborhood. ROI1 ex. 12. The
RO was not questioned about this remark during the investigation.
6We note that complainant presented a prima facie case of reprisal
discrimination with regard to this claim by demonstrating that at the time
she was notified of the denial of her bronze medal by e-mail on April 10,
1995, she was pursuing an EEO complaint against a high level official of
the agency, of which several agency officials with involvement in the
awards process, including the RO, AA and Acting Director, were clearly
aware. See Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F.Supp. 318 (D.Mass.), aff'd 545 F.2d 222 (1st
Cir. 1976).
7 The EEO investigator indicated that she was unable to secure an
affidavit from the CS, who had since left the agency's employ.
8 See, e.g., Carle v. Department of the Navy, EEOC Appeal No. 01922369
(January 5, 1993); Benton v. Department of Defense, EEOC Appeal No.
01932422 (December 10, 1993).