0720090018
06-09-2010
Susan Willett, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior, Agency.
Susan Willett,
Complainant,
v.
Ken L. Salazar,
Secretary,
Department of the Interior,
Agency.
Appeal No. 0720090018
Hearing No. 540-2008-00041X
Agency No. OS-07-0083
DISMISSAL OF APPEAL
On April 27, 2009, the agency filed an appeal with the Commission, in
the form of its supporting brief, in which it notified the Commission
that it was rejecting the March 24, 2009 final decision of an EEOC
Administrative Judge's (AJ) finding of discrimination in violation of
Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42
U.S.C. � 2000e et seq., and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the reasons that
follow, the agency's appeal is dismissed.
On November 21, 2006, complainant filed an EEO complaint alleging that
she was discriminated against on the bases of race (Native American),
sex (female), age (63), and in reprisal for prior protected EEO activity
when: 1) in September 2006, she received a directed reassignment from
Phoenix, Arizona to Herndon, Virginia;1 2) she was investigated after
the agency received an anonymous letter alleging she had engaged in
improper behavior; 3) she was not paid for official government travel
taken between May 2004 and October 2004; and 4) beginning in March 2005,
she was harassed by the Deputy Chief Information Officer (DCIO), such
as when he made his hand into the shape of a gun and she was "shot"
at as she walked by.
In the AJ's October 30, 2008 initial decision, the AJ found that the
agency had failed to show good cause when it failed to file a timely,
complete Report of Investigation. The AJ concluded that sanctions were
warranted.2 She found that a default judgment in favor of complainant,
on the issues identified above, was an appropriate sanction, and entered
a finding on behalf of complainant.
The agency attempted to prematurely appeal the AJ's initial decision
through an interlocutory appeal of December 9, 2008. We note that the
agency correctly stated in its appeal brief, submitted on December 29,
2008, that the regulations at 29 C.F.R. Part 1614 do not allow for
interlocutory appeals for actions taken by AJs in the course of the
hearings process. As such, we did not address the agency's arguments
at the time they were submitted.
The AJ held a hearing on complainant's entitlement to damages on
February 10, 2009, and issued a final decision on March 24, 2009.
The agency subsequently filed its appeal with the Commission regarding
the AJ's decisions through the submission of its second brief in support
of its appeal. In its second brief, the agency repeated the arguments
made in its first brief, that the AJ was in error in issuing a default
judgment. It did not specifically address the AJ's final decision
regarding damages.
The record does not reflect that the agency ever issued a final order
rejecting the AJ's default judgment in favor of complainant, or the AJ's
final decision on damages.
Pursuant to 29 C.F.R. � 1614.110(a), the agency is required to take final
action on the complaint by issuing a final order within forty (40) days of
receipt of the hearing file and the AJ's decision. If an agency decides
not to fully implement the decision of an AJ, then the agency must issue
a final order and simultaneously file an appeal with the Commission
in accordance with 29 C.F.R. � 1614.403. A copy of the appeal must
be appended to the final order. If the agency does not issue a final
order and file an appeal simultaneously with the issuance of the order,
as in the case at hand, the AJ's decision will be deemed ratified by the
agency upon the expiration of the agency's 40-day period for accepting or
not accepting the AJ's decision. See 29 C.F.R. � 1614.109(i); EEO-MD-110,
Chapter 9, � III(B)(1) n.4 (November 9, 1999).
In the instant matter, we find that the agency failed to issue a final
order. Although it filed an appeal with the Commission following the AJ's
final decision on damages, there is no evidence that the agency actually
issued a final order in which it notified complainant that it would not
implement the decision of the AJ. According to guidance provided in
EEO-MD-110, Chapter 9, � II(B)(2)(b), when an agency does not intend to
fully implement the decision of an AJ, the final order serves notice on
the complainant that the agency has filed an appeal of the AJ's decision
with the Commission, that the complainant has the right to file his/her
own appeal of the agency's final order with the Commission, that the
complainant may file a separate appeal from the agency's final order to
challenge any errors complainant may believe the AJ may have committed,
and gives complainant notice that any such appeal must be filed within 30
days of the agency's final order. The agency is also required to provide
complainant with a copy of EEOC Form 573, Notice of Appeal/Petition at
this time. The final order is also used to notify complainant of his/her
right to file a civil action in federal district court, the name of the
proper defendant in any such lawsuit and the applicable time limits for
appeals and lawsuits. See 29 C.F.R. � 1614.110(a). There is no evidence
that the agency provided this information to complainant in this case.3
Accordingly, the agency's appeal is DISMISSED. The decision of the
AJ has become the agency's decision, and we shall order the agency to
comply with the AJ's order, as modified below.
ORDER
Within sixty (60) days of the date this decision becomes final:
1) The agency shall pay complainant $6,000.00 in non-pecuniary
compensatory damages.
2) The agency shall pay $397.01 in costs.
3) The agency shall provide training to the responsible management
officials regarding their responsibilities under EEO laws, with a special
emphasis on harassment. The agency shall also provide training to the
EEO management officials involved, regarding their responsibilities
concerning case processing.
4) The agency shall consider taking appropriate disciplinary action
against the responsible management officials. The Commission does not
consider training to be disciplinary action. The agency shall report
its decision to the Compliance Officer. If the agency decides to take
disciplinary action, it shall identify the action taken. If the agency
decides not to take disciplinary action, it shall set forth the reason(s)
for its decision not to impose discipline. If any of the responsible
management officials have left the agency's employ, the agency shall
furnish documentation of their departure date(s).
5) The agency shall post a notice in accordance with the paragraph below.
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.
POSTING ORDER (G0900)
The agency is ordered to post at its Office of Information Policy, Chief
Information Officer - Indian Affairs facility in both Phoenix, Arizona
and in Herndon, Virginia, copies of the attached notice. Copies of the
notice, after being signed by the agency's duly authorized representative,
shall be posted by the agency within thirty (30) calendar days of the
date this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington,
DC 20013. The agency's report must contain supporting documentation,
and the agency must send a copy of all submissions to the complainant.
If the agency does not comply with the Commission's order, the complainant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The complainant also has the right to file a civil action
to enforce compliance with the Commission's order prior to or following
an administrative petition for enforcement. See 29 C.F.R. �� 1614.407,
1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled "Right to File A Civil
Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013. In the absence of a legible postmark, the request
to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (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
_________06/09/10_________
Date
1 Complainant withdrew this claim on December 5, 2008, while before
the AJ.
2 The AJ also noted that the agency had been sanctioned for failure to
produce complete and timely Reports of Investigation in the cases of
Talahongva-Adams v. Department of Interior, EEOC Appeal No. 0120081694
(May 28, 2010) (default judgment for complainant affirmed and agency
ordered to implement remedies as ordered by AJ) and Garcia v. Department
of Interior, EEOC Appeal No. 0720080029 (December 15, 2008) (agency appeal
of finding for complainant following a sanction, administratively closed
upon withdrawal of appeal by agency).
3 We note that the agency's failure to comply with the 29 C.F.R. Part 1614
regulations, by failing to issue a final order, is but the culmination of
the agency's failure to abide by our regulations throughout the processing
of this complaint, the details of which were fully delineated by the AJ
in her decisions.
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0720090018
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0720090018