Sonia DaCosta, Complainant,v.Richard W. Riley, Secretary, Department of Education, Agency.

Equal Employment Opportunity CommissionFeb 25, 2000
01995992 (E.E.O.C. Feb. 25, 2000)

01995992

02-25-2000

Sonia DaCosta, Complainant, v. Richard W. Riley, Secretary, Department of Education, Agency.


Sonia DaCosta, )

Complainant, )

)

v. ) Appeal No. 01995992

) Hearing Nos. 100-95-7551X

Richard W. Riley, ) 100-97-7065X

Secretary, ) Agency No. ED94610002

Department of Education, )

Agency. )

)

DECISION

On August 2, 1999, the complainant filed an appeal with this Commission

from the agency's failure to have her July 11, 1994 complaint investigated

by an independent investigator, consistent with remand instructions by

EEOC administrative judges on August 2, 1995, and December 1, 1997.<1>

The Commission accepts the complainant's appeal in accordance with EEOC

Order No. 960, as amended.

ISSUES PRESENTED

The issues presented in this appeal are (1) whether the record

demonstrates that the agency has complied with EEOC Regulation 29 C.F.R. �

1614.108(e); (2) whether the agency has shown good cause for its failure

to provide for the timely investigation of the complainant's complaint,

and (3) whether claim 2 of the complainant's complaint states a claim.

BACKGROUND

When the matters at issue arose, the complainant was employed as an

Equal Employment Specialist, GS-260-12, in the agency's Office of Human

Resources and Administration, Administrator for Management Services, Equal

Employment Opportunity Staff, Complaints Analysis and Conciliation Unit.

On December 30, 1992, the complainant requested a desk audit because the

agency was purportedly assigning her GS-13 duties while paying her GS-12

level wages. On March 29, 1994, the complainant received the results of

the desk audit; she contacted an EEO counselor soon thereafter. On May

22, 1994, the complainant began employment as a GS-13 Equal Employment

Specialist with another Federal agency.

On July 14, 1994, the complainant filed a formal EEO complaint wherein she

alleged that based on her national origin (Hispanic) and in retaliation

for her prior EEO activity, (1) on March 25, 1994, the agency declined to

upgrade her position and, (2) on May 4, 1994, the agency subjected her to

a hostile work environment due to the receipt of a May 2, 1994, letter

from an independent contractor. The complainant named her supervisor

and the author of the May 2, 1994 letter as the responsible individuals.

To remedy the alleged discrimination, the complainant sought payment

for the GS-13 duties she allegedly had performed from December 1, 1992

through May 21, 1994; a letter of apology, and compensatory damages.

According to the EEO Counselor's Report, the complainant alleged that her

supervisor failed to support her upgrade request when meeting with the

classifier, even though she performed all of the grade-level controlling

duties performed by Employee A, a GS-13 Equal Employment Specialist.

According to the March 25, 1994 desk audit result memorandum, the audit

did not reveal that the complainant continually performed higher graded

duties with such frequency as to affect the grade of her position. For

example, the memorandum found that the complainant's responsibility for

revising agency regulations consumed less than 20% of the complainant's

time. The memorandum indicated, however, that the complainant had been

assigned duties which appeared to have similarities to those assigned to

the GS-13 position held by Employee A, including functions related to the

intake process, the resolution of different types of complaints, sexual

harassment assignments, the provision of sexual harassment training,

investigative duties, and the writing of some procedural guidance for the

revised Part 1614 regulations. The memorandum concluded that there were

a number of position management problems relative to the classification

of the complainant's position including the apparent overlap of duties

and responsibilities and possible grade impact of individual assignments.

Of relevance to the instant appeal, the classifier indicated at page 6

of the �Evaluation Statement�:

Incumbent certifies the completeness of records and evaluates the

contractor's work. (EEO investigations are primarily performed by a

contractor.)

The record indicates that the independent contractor named in allegation

2 of the complainant's complaint had been tasked with investigating the

EEO complaint of Employee B (agency complaint number ED-9382000), filed

on September 7, 1993. The contractor's May 2, 1994 letter criticized

the investigation plan that had been prepared by the complainant.

The letter stated, among other things, that two incidents of alleged

sexual harassment had been ignored: a co-worker's walking into Employee B

and allegedly touching her private parts and another incident involving

alleged remarks by co-workers with sexual innuendo. According to the

EEO Counselor's Report, the letter was discussed at a May 4, 1994 unit

meeting where the complainant believed she was harassed by her supervisor

because she did not have a �filthy� mind.

On January 30, 1995, the complainant wrote the agency's EEO Office

requesting a hearing before an EEOC Administrative Judge. The letter

pointed out that the agency had not yet issued her an acceptance

or dismissal letter or a notice regarding the investigation of her

complaint. On February 23, 1995, the complainant informed the EEOC's

Office of Federal Operations (OFO) that the agency had not responded to

her complaint. Thereafter, OFO wrote to the agency and, in response,

the agency sent a hearing request to the EEOC's Washington Field

Office (WFO) on April 5, 1995. Therein, the agency pointed out that

because the complainant's allegations involved the EEO Office, �her

complaint is considered as a conflict of interest matter ....� The

complainant's complaint was docketed by the EEOC's WFO with hearing

number 100-95-7551X.

By letter of August 2, 1995, Administrative Judge 1 remanded the complaint

to the agency for investigation. The letter indicated that both parties

had agreed to the remand and had stipulated that the investigation would

be completed within 90 days. Administrative Judge 1 recommended that an

independent investigator be appointed due to the acknowledged conflict

of interest.

On October 27, 1995, the agency's EEO Office wrote the Government

Printing Office (GPO) as a follow-up to an October 19, 1995 conversation.

The letter indicated that the agency was seeking another Federal agency

to assume the processing of two separate conflict of interests complaints:

the complainant's complainant and the complaint of Employee C, ED-9337000.

The letter indicated that it was the agency's understanding that the

GPO might be able to handle both cases.

By letter of August 8, 1996, the agency's EEO Office notified the

complainant that it again had been contacted by EEOC's OFO regarding

her complaint. The letter indicated that it had informed the EEOC that

it was seeking another Federal agency to process her conflict of interest

complaint, and that at present the EEO Office was striving to establish

an interagency agreement by which to delegate specific EEO authority to

GPO to process the complaint.

On September 20, 1996, the complainant again requested a hearing, noting

that she had cooperated with the agency when it requested a 90-day

extension for the investigation, but that no action had yet been taken

on her complaint. The agency forwarded the second hearing request to

EEOC's WFO, where it was docketed as hearing number 100-97-7065X on

October 21, 1996. The acknowledgment letter informed the parties that

due to the large volume of cases, the matter had not yet been assigned

to an administrative judge.

On August 13, 1997, the complainant requested that Administrative Judge 2

order the agency to pay discovery costs since they had expended no money

to conduct the investigation of her complaint. Administrative Judge 2

responded to the parties that EEOC procedures did not provide for shifting

the costs during the hearing process, but that the complainant would be

entitled to such costs if she prevailed on her complaint. Administrative

Judge 2 also requested that the agency advise him of the status of the

investigative report. The agency responded that no investigative report

had been prepared because, prior to the agency's obtaining the assistance

of another agency, the complainant had requested a hearing.

On October 9, 1997, the complainant wrote Administrative Judge 2 that

Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614

(October 22, 1992) (hereinafter referred to as EEO MD-110 (1992), Chapter

6, Section III.F. at 6-16, gave administrative judges the authority to

require the agency to pay any costs incurred by a complainant in taking

depositions or in any other form of discovery when an agency fails to

timely complete its investigation. The complainant represented that

she had not incurred any additional expenses for discovery because

Administrative Judge 2's reply of August 13, 1997 had discouraged her

from doing so. The complainant further informed Administrative Judge

2 that it seemed pointless to pursue her complaint before him because

she believed he had characterized her complaint as a �nuisance� during

the prehearing conference.

On October 20, 1997, Administrative Judge 2 wrote the parties that

he was researching the question of cost shifting and would provide

further guidance soon. He also informed the parties that the agency's

characterization of its settlement offer as a �nuisance settlement�

did not reflect his view of the merits of the complainant's complaint

allegations. Administrative Judge 2 further pointed out that the

complainant had not responded to the agency's Motion for Summary Judgment.

By letter of November 9, 1997, the complainant notified Administrative

Judge 2 and the agency that she was requesting a final agency decision

from the agency.

On December 1, 1997, Administrative Judge 2 remanded the complaint to

the agency for final agency decision per the complainant's request.

Administrative Judge 2 reminded the agency that because no investigation

had yet been undertaken, the agency was responsible for collecting

sufficient information to render a final decision. Administrative Judge 2

instructed the agency that to avoid a conflict of interest, an independent

investigator should conduct any fact finding. Administrative Judge

2 indicated that agency counsel had informed him that the agency was

entering into an interagency agreement for that purpose. Administrative

Judge 2 also advised the agency that because the complainant was a former

employee of the EEO Office, a conflict of interest would arise if the EEO

Office were to process the merits of the complaint. Administrative Judge

2 instructed the agency that, therefore, someone outside the EEO Office

should render the final agency decision.

On April 21, 1999, the agency's EEO Office notified the complainant that

an investigation would be conducted by a General Service Administration

sole source contractor. On June 9, 1999, the agency's EEO Office

notified the complainant that there would be a �short� delay in the

start of the investigation. On June 29, 1999, the agency's EEO Office

officially acknowledged the receipt of the complainant's formal complaint

and informed the complainant of her right to an investigation within 180

days of the filing of her complaint and the right to appeal any final

agency decision on her complaint. On July 29, 1999, the agency's EEO

Office sent the complainant a letter enclosing a set of interrogatories

to �expedite� the issuance of a final decision. The agency's EEO

Office requested that the complainant return her answers with a signed

and notarized certification of truthfulness within fifteen days of her

receipt of the letter.

On August 2, 1999, the complainant filed the instant appeal. The

complainant indicates that for a second time the agency has ignored

the instructions of an Administrative Judge to have the investigation

conducted by a neutral and impartial party. The complainant contends

that the manner in which the agency has engaged in delays for five years

and ignored two remands from the EEOC is tantamount to a final decision.

In support of her appeal, the complainant submits copies of correspondence

she wrote and received in her repeated attempts to have the agency process

her complaint in accordance with the requirements of 29 C.F.R. Part 1614.

For example, on August 23, 1996, the complainant wrote to her Senator and

expressed her concern that many of her witnesses had already left the

EEO Office and that the supervisor who allegedly discriminated against

her planned to retire that year.

In response to the complainant's appeal, the agency argues that it

has not ignored the EEOC's guidance, and that the record documents its

efforts to have the complainant's complaint investigated by a neutral and

impartial party. Specifically, the agency argues that since 1995, it has

attempted to have another agency investigate the complainant's complaint.

In support of its representation, the agency relies on a description

of its efforts in 1996 and 1997 to effect an interagency agreement to

process the complainant's complaint. The description indicates, among

other things, that the agency's EEO Office received a sample interagency

agreement from the EEOC's OFO on June 24, 1996, and again on February

28, 1997. The agency describes the process of drafting the interagency

agreement as a �tedious and long process.� The agency also contends

that the agency can now investigate the complainant's complaint because

a conflict of interest no longer exists. The agency argues that the

individuals named in the complainant's complaint are no longer employed

in the agency's EEO Office and that a new Director has been appointed.

The agency requests that the Commission find that a conflict of interest

no longer exists and that the complainant be ordered to respond to the

interrogatories it sent her.

On November 23, 1999, the Commission's OFO issued to the parties

a �Notice to Show Good Cause Why Sanctions Should Not Be Imposed.�

The Notice described the agency's duty to investigate complaints of

discrimination in accordance with 29 C.F.R. � 1614.108(e), referenced

the two prior Commission remands of the complainant's complaint to the

agency for investigation, and set forth the Commission's authority to

order sanctions. The Notice ordered the agency to show good cause why

the Commission should not sanction the agency for its failure to comply

with EEOC Regulation 29 C.F.R. � 1614.108(e) by issuing a decision on the

complaint that is fully or partially in favor of the complainant; and/or

by taking such other actions as the Commission may deem appropriate.

The agency filed a timely response to the Notice wherein it reiterates

prior factual representations and contends that it has attempted to

investigate the complainant's complaint in good faith, consistent with

the instructions of the administrative judges. The agency also contends

that it should not be sanctioned because it has not acted in bad faith,

because it attempted to negotiate an interagency agreement to have the

complaint investigated; the agency currently seeks to investigate the

complaint; and no conflict of interest now exists that would prevent the

agency from conducting a �supplemental� investigation. To support its

contentions, the agency submits copies of documents already in the record

and a declaration made �under penalty of oath� by the Complaints Team

Leader of the agency's Equal Opportunity Group. The declarant indicates,

without explanation, that an interagency agreement could not be effected.

The declarant also represents that the complainant's former supervisor

and one of the employees who attended the May 4, 1994 unit meeting no

longer work for the agency. The declarant further opines that a conflict

of interest does not currently exist since the current EEO reviewers were

not agency employees when the alleged discriminatory actions took place.

ANALYSIS AND FINDINGS

Violation of EEOC's Part 1614 Regulation

EEOC Regulation 29 C.F.R. � 1614.108(e) requires agencies to complete

an investigation of a formal EEO complaint within 180 days of the

filing of the complaint unless the parties agree in writing to extend

the period for not more than an additional 90 days. The complainant

did not agree to an extension during the regulatory 180 day period;

therefore the agency was required to complete the investigation of

the complainant's complaint on or before January 10, 1995. The record

demonstrates, and the agency does not dispute, that no investigation

was ever begun, much less completed, within the 180-day period.

Despite the complainant's continuous and diligent efforts to have her

complaint properly investigated, it was not until July 29, 1999, more

than five years after the filing of the complainant's complaint, that

the agency's EEO Office sent the complainant a set of interrogatories to

answer and it did so in a clear disregard of an Administrative Judge's

latest instructions. Accordingly, the Commission finds that the agency

failed to conduct a timely investigation of the complainant's complaint

as required by EEOC Regulation 29 C.F.R. Part 1614 and the Administrative

Judge 's instructions.

Imposition of Sanctions

The Commission has the inherent power to protect its administrative

process from abuse by either party. Buren v. Unites States Postal

Service, EEOC Request No. 05850299 (November 18, 1988). The procedures

contained in the Commission's Regulations are no more or no less than

the necessary means to eliminate unlawful employment discrimination in

Federal employment. Id. Therefore, the Commission must insure that

agencies, as well as complainants, abide by its regulations.

The Commission has exercised its inherent authority to enforce its Part

1614 Regulations by ordering sanctions in response to various violations.

See, e.g., Epstein v. Department of Health and Human Services, EEOC

Request No. 05970671 (July 2, 1998) (upholding an award of attorney's

fees and costs incurred in establishing a breach of a settlement agreement

where the agency's attorney misrepresented her authority to enter into a

specific agreement); Terrell v. Department of Health and Human Services,

EEOC Request No. 04950018 (November 7, 1996) (awarding attorney's fees

and costs for filing a petition for enforcement following the agency's

failure to comply with the Commission's order to conduct a supplemental

investigation within 90 days); Edwards v. United States Postal Service,

EEOC Request No. 05950708 (October 31, 1996) (Commission has the authority

to remedy a violation of 29 C.F.R. � 1614.605(b)(2) by awarding official

time without a finding of discrimination); and Stull v. Department of

Justice, EEOC Appeal No. 01942827 (June 15, 1995) (upholding an award

of attorney's fees and costs incurred in an attempt to have an adverse

inference drawn where the agency failed to comply with an administrative

judge's order to produce documents).

In addition to the Commission's inherent authority to enforce its Part

1614 Regulations, EEOC Regulation 29 C.F.R. � 1614.108(c)(3) authorizes

administrative judges and the Commission on appeal to take one of four

specified actions, or any such other actions deemed appropriate, where

an agency or its employees fails without good cause shown to respond

fully and in timely fashion to an investigator's requests for documents,

records, comparative data, statistics, affidavits, or the attendance

of witnesses. EEOC Regulation 29 C.F.R. � 1614.109(d)(3) provides

sanctions for a party's failure to respond fully and timely to requests

for evidence in the hearing context. 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.404(c))

provides sanctions for a party's failure to respond to the Commission's

requests for the submission of evidence following an appeal.

The Commission finds in the instant case that the agency has successfully

prevented an independent investigator from making evidentiary requests

by failing to assign the matter to an independent investigator as

required by EEOC Regulation 29 C.F.R. � 1614.102(a)(2).<2> However, the

agency's inaction does not nullify the Commission's inherent authority

to sanction the agency's failure to fulfill its duty to investigate, or

to otherwise provide for the prompt, fair, and impartial investigation

of the complainant's complaint, within 180 days of the date she filed

the complaint.

The agency contends that the record documents its attempts to have the

complainant's complaint investigated by a neutral and impartial party.

However, the agency has not provided any documentation or explanation

for its failure to investigate the complainant's complaint within 180

days of its filing, that is, on or before January 10, 1995. In fact,

the only agency attempts to initiate an investigation occurred in October

1995 and in 1996 and 1997, months and years after the time limitation

for completing the investigation had expired. The agency was never

ignorant of its responsibility to have the complaint investigated, but

it merely initiated attempts to do so, and all the ineffective attempts

were by the same office which allegedly had engaged in discrimination.

The agency's conduct is precisely the reason the EEOC expects this type

of complaint to be investigated by neutral third parties.

Given the agency's failure to investigate the complainant's complaint

within 180 days as required by Regulation, and the agency's failure to

provide any explanation for its non-compliance, the Commission finds

that the imposition of a sanction is warranted in this case.

Choice of an Appropriate Sanction

In determining the nature of the sanction to be imposed, the Commission

has considered the agency's contention that it did not ignore the EEOC's

guidance and instructions that the complainant's complaint should be

investigated by a neutral and impartial party. During the time period

in question, July 14, 1994 through January 10, 1995, the agency should

have been guided by MD-110 (1992), Chapter 5, Section V.C.1 and 2 at

5-5 which provided in pertinent part:

The person assigned to investigate shall not occupy a position in the

agency that is directly or indirectly under the jurisdiction of the head

of that part of the agency in which the complaint arose.

The investigator, if a contract investigator, shall not have been

hired by or be obligated to the person(s) involved in the matter(s)

giving rise to the complaint. For example, where the contract monitor

of EEO investigation contracts is alleged to have been involved in

discriminatory activity, the use of the usual contract investigator

would create an apparent bias because there is at best the appearance

that the contract investigator could not be impartial.

Based on this Commission guidance, the person assigned to investigate

the complainant's complaint could not have occupied a position in

the agency that was directly or indirectly under the jurisdiction

of the head of that part of the agency in which the complaint arose.

It appears from the audit �Evaluation Statement� that this guidance

should have presented no difficulty for the agency because the agency's

EEO investigations were primarily performed by independent contractors.

Yet, there is no indication in the record that the agency even considered

using a contract investigator to investigate the complainant's complaint

prior to 1999 when, on April 21, 1999, the agency's EEO Office notified

the complainant that an investigation would be conducted by a sole source

contractor. In addition, to the extent that the agency was concerned

with the potential for a conflict of interest to occur if the agency's

EEO Office monitored the contract investigator for the complainant's

complaint, the responsibility for contract management and award could

have been transferred to another part of the agency with experience in

contract management and awards.

The Commission finds that the agency did not follow the guidance

set forth in MD-110 (1992), as described above, but instead, allowed

the agency's EEO Office with an acknowledged conflict of interest to

retain responsibility for the processing of the complainant's complaint.

The results are evident: (1) a period of inactivity from July 14, 1994

to April 5, 1995; (2) followed after the August 2, 1995 Remand Order, by

what the agency describes as the �tedious and long process� of drafting

an interagency agreement; (3) followed by another period of inactivity

from December 1, 1997 to April 21, 1999. The agency acknowledges that it

has not executed an interagency agreement. There also is no evidence in

the record that the agency made any additional efforts to do so following

Administrative Judge 2's remand Order of December 1, 1997.

The agency requests the Commission to find that a conflict of interest

no longer exists, and to order the complainant to respond to the

interrogatories it sent her. These requests assume that an agency

has an option under 29 C.F.R. Part 1614 to delay the investigation of

a complaint until a potential conflict of interest is resolved through

resignation, retirement, or death. No such option exists under Part 1614.

Moreover, such an option would defeat the purpose of the Regulation, i.e.,

to eliminate unlawful employment discrimination in Federal employment.

The Commission observes that in such a situation the agency would be

able to argue, as the agency successfully did in Davis v. Department

of Education, EEOC Request No. 05950147 (August 1, 1996), that when a

witness no longer works for the agency and fails to appear at a hearing,

the failure to attend can not be deemed to be a refusal by the agency to

submit evidence. Indeed, the agency has informed the Commission that

the supervisor who allegedly discriminated and retaliated against the

complainant in this case now no longer works for the agency.

Finally, the agency contends that the agency should not be sanctioned

because the agency has not acted in bad faith. The legal issue

to be resolved is not whether the agency acted in bad faith, but

rather, whether the agency has shown good cause for its failure to

have the complainant's complaint timely investigated by an impartial

investigator as required by EEOC Regulation 29 C.F.R. � 1614.102(a)(2),

and � 1614.108(e). See Jackman v. Housing and Urban Development,

EEOC Request No. 05970011 (January 16, 1998); Stull, supra; and 29

C.F.R. � 1614.109(d)(3), and � 1614.404(c). The bad faith standard was

applicable under the Commission's prior Regulation, 29 C.F.R. Part 1613,

as set forth in 29 C.F.R. � 1613.218(e).

The Commission finds that the agency has not shown any reason, much less

than good cause, for its failure to comply with either the Administrative

Judges' instructions or EEOC Regulation 29 C.F.R. � 1614.102(a)(2), and

� 1614.108(e) in this case. However, even under the bad faith standard

advocated by the agency, the agency's actions speak for themselves.

The agency had an opportunity and the responsibility to investigate the

complainant's complaint in 1994, but it failed to do so. On August 2,

1995, Administrative Judge 1 remanded the complaint to the agency based

on a stipulation by the agency that the investigation would be completed

within ninety (90) days. No investigation was conducted during the

ninety-day period. The complainant expressed concern to her Senator in

1996, that many of her witnesses had already left the EEO Office and that

the supervisor who allegedly discriminated against her planned to retire

that year. Nevertheless, no investigation was conducted. On December

1, 1997, Administrative Judge 2 remanded the complaint to the agency for

investigation by an independent investigator and the issuance of a final

agency decision in response to the complainant's request. The agency was

required by EEOC Regulation 29 C.F.R. � 1614.110 to issue a final decision

within 60 days of the complainant's request. Again, no investigation

was conducted following the remand. The agency waited more than sixteen

months to notify the complainant that an investigation would be conducted

by a sole source contractor. Again, no such investigation was conducted.

On July 29, 1999, the agency, not the required independent contractor,

sent the complainant a set of interrogatories to �expedite� the issuance

of a final agency decision on her complaint. However, to this day the

record does not contain any indication that the agency has requested an

affidavit or answers to interrogatories from the supervisor or from any

other employees who had personal knowledge of the duties the complainant

and the comparative employee, Employee A, performed from December 1992

through May 21, 1994, and the percentage of time they each spent on GS-13

level duties. The Commission can only conclude from the agency's course

of conduct in this case that the agency's EEO Office negligently and

intentionally delayed the investigation of the complainant's complaint

because a timely investigation by an independent investigator would

have shown that the agency discriminated against the complainant based

on her national origin and in retaliation for her prior EEO activity.

The agency's feeble attempts to explain its dilatory behavior can not

reasonably justify its inability to have the complaint fully investigated

years earlier, as prescribed by the regulations and as instructed by

EEOC's officials.

Given the circumstances present in this case, the Commission finds

that the appropriate sanction for the agency's failure to process the

complainant's complaint in accordance with the Commission's Part 1614

Regulation is to issue a decision partially in favor of the complainant.

See 29 C.F.R. � 1614.108(c)(3)(i). Specifically, the Commission finds

that a timely and impartial investigation would have shown that the agency

required the complainant to perform the work of a GS-13 Equal Employment

Specialist for GS-12 pay from December 1, 1992 through May 21, 1994,

while paying the comparative employee GS-13 level pay for the performance

of similar duties, because of her national origin and in retaliation for

her prior EEO activity. To remedy the discrimination, the Commission

orders the agency to award the complainant the additional back pay,

interest on back pay, and benefits she would have received during that

period of time if the agency had not discriminated and retaliated against

her. The Commission also orders the agency to conduct a supplemental

investigation to determine whether the complainant is entitled to the

compensatory damages which she requested in her complaint. The agency

shall afford the complainant on remand an opportunity to establish a

causal relationship between the payment of GS-12 wages for GS-13 work

and any pecuniary or non-pecuniary losses. See West v. Gibson, 119

S. Ct. 1906 (1999).

The Commission issues a decision partially, but not totally, in favor

of the complainant only because the Commission finds, for the reasons

set forth below, that allegation 2 of the complainant's complaint fails

to state a claim under Part 1614.

Allegation 2

Where an alleged claim does not challenge an agency action or inaction

regarding hiring, termination, compensation or any other specific term,

condition, or privilege of employment, the alleged claim may still state

a claim under Part 1614 if the complaint allegations are sufficient

to state a hostile or abusive environment claim. Cobb v. Department

of the Treasury, EEOC Request No. 05970077 (March 13, 1997), citing

Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993) (harassment

is actionable if it is sufficiently severe or pervasive to alter the

conditions of the complainant's employment).

The Commission finds that even if proven true, the facts alleged

regarding the May 2, 1994 letter and the May 4, 1994 meeting do not

indicate that the complainant may have been subjected to harassment

that was sufficiently severe or pervasive to alter the conditions of

her employment. Accordingly, the Commission finds that the complainant's

complaint does not state a claim under 29 C.F.R. Part 1614. See Phillips

v. Department of Veterans Affairs, EEOC Request No. 05960030 (July

12, 1996) (allegations that the supervisor had "verbally attacked"

the complainant on one occasion, attempted to charge him with AWOL,

and disagreed with the time the complainant entered into a sign-in log,

were insufficient to state a harassment claim); Backo v. United States

Postal Service, EEOC Request No. 05960227 (June 10, 1996) (a supervisor's

remarks on several occasions, unaccompanied by any concrete action, were

not sufficient to state a claim); and Miller v. United States Postal

Service, EEOC Request No. 05941016 (June 2, 1995) (an oral admonishment

was not sufficient to state a hostile work environment claim).

CONCLUSION

For the reasons stated above, the Commission finds that allegation 2 of

the complainant's complaint fails to state a claim under 29 C.F.R. Part

1614. The Commission finds that the agency failed to comply with

EEOC Regulation 29 C.F.R. � 1614.108(e) without good cause shown.

The Commission sanctions the agency's violation of its Regulation

and instructions by finding that the agency discriminated against the

complainant based on her national origin and in retaliation for her

prior EEO activity when it required her to perform the work of a GS-13

Equal Employment Specialist for GS-12 pay from December 1, 1992 through

May 21, 1994. The Commission orders the agency to fully remedy the

discrimination in accordance with the Order below, and to demonstrate

that it has taken steps to insure that the agency's failure to investigate

a complaint involving the agency's EEO Office does not recur.

ORDER

The agency is ORDERED to take the following remedial action:

The agency has been found to have discriminated against the complainant

based on her national origin and in retaliation for her prior EEO activity

when it required her to perform the work of a GS-13 Equal Employment

Specialist for GS-12 pay from December 1, 1992 through May 21, 1994.

The agency shall determine the appropriate amount of back pay with

interest and other benefits due complainant, pursuant to 29 C.F.R. �

1614.501, no later than sixty (60) calendar days after the date this

decision becomes final. The complainant shall cooperate in the agency's

efforts to compute the amount of back pay and benefits due, and shall

provide all relevant information requested by the agency. If there

is a dispute regarding the exact amount of back pay and/or benefits,

the agency shall issue a check to the complainant for the undisputed

amount within sixty (60) calendar days of the date the agency determines

the amount it believes to be due. The complainant may petition for

enforcement or clarification of the amount in dispute. The petition for

clarification or enforcement must be filed with the Compliance Officer,

at the address referenced in the statement entitled "Implementation of

the Commission's Decision."

The agency shall conduct a supplemental investigation on the issue of

complainant's entitlement to compensatory damages and shall afford her

an opportunity to establish a causal relationship between the payment

of GS-12 wages for GS-13 level work and any pecuniary or non-pecuniary

losses that the complainant can prove. The complainant shall cooperate

in the agency's efforts to compute the amount of compensatory damages,

and shall provide all relevant information requested by the agency.

The agency shall issue a final decision on the issue of compensatory

damages. 64 Fed. Reg 37,644, 37,657-58 (1999) (to be codified and

hereinafter referred to as 29 C.F.R. � 1614.110). The supplemental

investigation and issuance of the final decision with appropriate

appeal rights shall be completed within ninety (90) calendar days of the

date this decision becomes final. A copy of the final decision must be

submitted to the Compliance Officer, as referenced below. The agency

is put on notice that any unjustifiable delay in issuing this decision

will add interest to any amount the Commission finds the complainant is

entitled to in compensatory damages.

Within ninety (90) calendar days of the date this decision becomes final,

the agency shall submit to the Compliance Officer evidence that it has

in place a procedure whereby complaints alleging unlawful discrimination

by the agency's EEO Office (or its employees) are processed outside the

agency's EEO Office. The evidence shall describe the procedure and the

mechanism by which the agency insures that the procedure is followed by

the agency's EEO Office, including a description of penalties that the

agency will impose for failure to comply with the mandatory procedure.

The agency is further directed to submit a report of compliance, as

provided in the statement entitled "Implementation of the Commission's

Decision." The report shall include supporting documentation of the

agency's calculation of backpay and other benefits due complainant and

evidence that all corrective action has been implemented.

POSTING ORDER (G1092)

The agency is ORDERED to post at its Headquarters 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 (M1199)

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

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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

(R1199)

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 (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 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:

February 25, 2000

____________ ______________________________

Date Frances M. Hart

Executive Officer

Executive Secretariat

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

Equal

Employment

Assistant

Notice is posted pursuant to an Order by the United States Equal

Employment Opportunity Commission dated ___________ which found that

a violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et seq., has occurred at this facility.

Federal law requires that there be no discrimination against any employee

or applicant for employment because of that person's RACE, COLOR,

RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL DISABILITY

with respect to hiring, firing, promotion, compensation, or other terms,

conditions, or privileges of employment.

The Department of Education's Headquarters in Washington, D. C., supports

and will comply with such Federal law and will not take action against

individuals because they have exercised their rights under law.

The Department of Education's Headquarters has been found to have violated

Title VII when it discriminated against an employee based on her national

origin and in retaliation for her prior EEO activity by requiring her

to perform GS-13 Equal Employment Specialist duties for GS-12 pay from

December 1, 1992 through May 21, 1994. The Department of Education's

Headquarters has been ordered to take corrective action in the form

of an award of back pay with interest and benefits to the individual,

and payment to her for any reasonable attorney's fees incurred in the

processing of her complaint and any compensatory damages for which she

proves entitlement. In addition, the agency must submit evidence to the

Commission that it has established and implemented a procedure whereby

EEO complaints that allege unlawful discrimination by the agency's EEO

Office or its employees are processed outside that office.

The Department of Education's Headquarters will not in any manner

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 pursuant to, Federal equal employment

opportunity law.

Date Posted: ____________ _________________________

Posting Expires: __________ _________________________

1On 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.

2EEOC Regulation 29 C.F.R. � 1614.102(a)(2) requires that agencies shall

provide for the �prompt, fair and impartial� processing of complaints

in accordance with Part 1614 and the instructions contained in the

Commissions's Management Directives.