01a43945
05-02-2006
Worley L. Reed, Complainant, v. Condoleezza Rice, Secretary, Department of State, Agency.
Worley L. Reed,
Complainant,
v.
Condoleezza Rice,
Secretary,
Department of State,
Agency.
Appeal No. 01A43945
Agency Nos. 98-02 & 98-46
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaints of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq., and Section 501 of the Rehabilitation Act
of 1973, as amended, 29 U.S.C. � 791 et seq. The appeal is accepted
pursuant to 29 C.F.R. � 1614.405.
On October 31, 1997, complainant filed Complaint No 98-02 alleging that
he was subjected to discrimination on the basis of disability (perceived
depression) and in reprisal for having engaged in prior EEO activity
when he was not selected for two details; and when he was forced to
"curtail" his assignment at the U.S. Embassy in Frankfurt, Germany.
On July 17, 1998, complainant filed Complaint No. 98-46 alleging that
he was subjected to discrimination on the basis of disability and in
reprisal for engaging in protected EEO activity when:
1. He was not issued work assignments for the rating period 8/27/97 to
4/15/98; his Performance Appraisal reflected backdated work requirements,
which were generic and not inclusive of his accomplishments and specific
objectives; and the dates on his Performance Appraisal were falsified;
2. A campaign was conducted to reduce personnel resources available to
him in his Engineering Region by causing six month plus gaps between
departures of his Security Engineering Officers and Seabees1, and which
required him to travel often and denied him the opportunity to manage
regional technical security issues;
3. During his supervisor's visit to Nairobi, the supervisor made remarks
about marriage and divorce problems, which were related to issues in
complainant's previous complaint; and
4. His supervisor made offensive racist remarks about a Black officer
in the presence of complainant's spouse and stated that the officer did
not deserve to be promoted to FSO-01.
Complaint No. 98-02 was accepted for processing on August 19, 1998.
On July 9, 1999, Complaint No 98-46 was accepted. The two complaints were
consolidated for investigation. At the conclusion of the investigation,
complainant received a copy of the investigative report and asked for
a final decision.
Regarding complainant's claim of disability discrimination, the record
indicates that he maintained that from approximately 1990 until the
spring of 1996, he suffered from a mild form of depression known as "a
mid-life crisis." In the spring of 1996, he stated that he recovered
from his impairment. In January 1997, complainant was examined by a
psychologist. Despite a favorable evaluation, complainant maintained
that management treated him as though he were "mentally ill."
On January 31, 2002, the agency issued a final decision (FAD 1) finding
no discrimination. The agency found, with regard to both Complaint
Nos. 98-02 and 98-46, that complainant failed to establish a prima
facie case of reprisal or disability discrimination, and did not rebut
the agency's legitimate non-discriminatory reasons for its actions. The
agency's decision also noted that some documents related to the informal
counseling process of complainant's two complaints, including the EEO
counselor's reports, were not available as a result of the bombing of
the Nairobi Embassy in August 1998.
In Reed v. Department of State, EEOC Appeal No. 01A21898 (January 15,
2004), the Commission found that "the record did not contain sufficient
evidence to make a determination concerning complainant's appeal of the
agency's final decision." In addition to the EEO counselor's reports,
which were not in the file, the decision found that the record lacked
complainant's formal complaints and the investigative files. Under the
circumstances, without the aforementioned documents in the record, the
Commission found that it could not make a reasoned judgment. Therefore,
the agency's final decision was vacated and the complaints were remand
to the agency so that it could place into the record relevant available
documentation concerning the complaints. The agency was also directed
to issue a new final decision.
On May 7, 2004, the agency issued a new final decision (FAD 2). In that
decision, the agency indicated that it had added the original Report
of Investigation to the record, along with a supplemental Report of
Investigation. In addition, complainant, after contacting the agency,
was allowed to submit a statement to rebut assertions contained in a
memorandum provided by the investigator.
In FAD 2, the agency dismissed that portion of Complaint No. 98-02
pertaining to complainant being forced to curtail his assignment at the
U.S. Embassy in Frankfurt, Germany. The agency noted that this issue was
contained in complainant's Complaint No. 97-07, which was addressed by
the Commission in EEOC Appeal No. 01A02338 (August 8, 2002). A review
of the complaint file for Complaint No. 97-07 supports the agency's
contention that this claim was addressed by the Commission in EEOC Appeal
No. 01A02338. We find that this issue was properly dismissed. Therefore,
we will only address complainant's contention that he was discriminated
against when he was not selected to fill two detail positions.2 With
regard to Complaint No. 98-46, the agency found that complainant did
not establish discrimination. This appeal followed.
Complaint No. 98-02
Complainant was employed as an Engineer assigned to the Bureau of
Diplomatic Security (DS). After his tour at the American Embassy
in Frankfurt was curtailed, he returned to the United States and was
reassigned to an Engineer position in Washington, D.C. His first level
supervisor was A-1. His second level supervisor was A-2. In December
1996, complainant, by memorandum to A-2 and two high level management
officials, B-1 and B-2, volunteered to temporarily assume the position
of Division Director for Security Technology Operations (hereinafter,
Division Director) until he received his new assignment during the summer
of 1997. A-3, then the current Division Director, was scheduled to leave
in January 1997. In his memorandum, complainant spoke in great detail
about Complaint No. 97-02, EEO laws, and the agency's obligation to
be a model employer. Complainant did not mention the second position
(hereinafter Detail #2) another position in the DS. According to
complainant, he was subsequently told by A-2 that B-1 and B-2 considered
his memorandum to be a threat. C-1 was selected to temporarily act as
the Division Director. C-2 was chosen to temporarily fill Detail #2.
The record indicates that neither detail was advertised, nor were there
interviews. Complainant argued that he had more knowledge of engineering
management, than C-1 and C-2, because of his three major engineering
management positions.
B-1, who retired from the agency in September 2001, maintained that he
did not know about complainant's EEO activity until 2000. He also claimed
that he was not aware of complainant's alleged disability. According to
B-1, an assignment panel composed of the Director of Security and several
senior level office directors and personnel representatives made the
decisions for all jobs in the DS. B-1 served on that panel. Although he
acknowledged that complainant probably volunteered for the positions,
B-1 could not recall why he was not selected or why C-1 and C-2 were.
He could only assume that the selectees were chosen because they were
the best qualified. B-1 also outlined the factors that would have been
considered by the panel in making selection decisions. B-1 was certain
that complainant's previous EEO activity or medical condition would not
have played a role.
B-2, who retired in March 1998, confirmed that a panel met and
considered assignments of personnel. According to B-2, he chaired the
committee meeting for these positions. He maintained that the selection
decisions involved matching skills, requirements for overseas duties
and the person's desire for a particular type of position. B-2 did not
remember the discussions for the specific assignments involved in this
case, but he assumed that C-1 and C-2 probably fit the criteria better
than complainant. B-2 stated that he did not recall any discussion of
complainant's EEO activity or of his medical condition.
In FAD 2 (page 18), the agency found that:
Regarding complainant's first complaint of discrimination (EEO Case
Number 98-02), while management has articulated general criteria used in
making a selection, management has not defined the specific reasons why
the selectees were better choices for the position than complainant.
Therefore, management has failed to articulate specific, clear and
individualized legitimate, nondiscriminatory reasons for not assigning
complainant to the positions at issue.
Notwithstanding the above concession, however, the agency maintained
that: (1) complainant did not indicate that the agency's actions were
based on any illegal or discriminatory motive; (2) complainant did not
establish a prima facie case of reprisal discrimination because he did
not establish that management's actions had a "chilling effect" on his
future ability to participate in the EEO process; and (3) complainant
did not establish a prima facie case of disability discrimination.
In accordance with the burdens set forth in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973); Hochstadt v. Worcester Foundation for
Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d
222 (1st Cir. 1976), and Coffman v. Department of Veteran Affairs, EEOC
Request No. 05960473 (November 20, 1997), complainant may establish
a prima facie case of reprisal by showing that: (1) he engaged in a
protected activity; (2) the agency was aware of the protected activity;
(3) subsequently, he was subjected to adverse treatment by the agency;
and (4) a nexus exists between the protected activity and the adverse
treatment. See also Whitmire v. Department of the Air Force, EEOC Appeal
No. 01A00340 (September 25, 2000).
The agency erred in finding that complainant failed to establish a
prima facie case of reprisal discrimination because he did not show that
management's actions had a "chilling effect" on his future ability to
participate in the EEO process. Complainant was not required to make
such a showing. The agency's error is based on a misinterpretation of
our decision in Lisoyo v. United States Postal Service, EEOC Appeal
No. 05990684 (April 26, 2001). In Lisoyo, we held that in order to
state a claim of reprisal discrimination, a complainant is not limited
to only those situations where he has been subjected to an adverse
action affecting a term or condition of employment, but may also
contest actions that are reasonably likely to deter him from engaging
in protected activity. In the present case, complainant maintained
that he was subjected to an adverse action, i.e., he was not selected
for the two details. Under the agency's interpretation, a complainant
could only establish a prima facie case of reprisal discrimination if
he could establish that management's actions had a chilling effect on
his future ability to engage in EEO activity. Clearly, this was never
the Commission's intent.
Our review of the record indicates that complainant was able to establish
a prima facie case of reprisal discrimination. The record indicates
that complainant received notice of his right to file a formal complaint
regarding Complaint No. 97-07 on November 21, 1996. Thus, he satisfied
element (1). With respect to element (2), B-1 stated that he was not
aware of complainant's EEO activity. B-2 did not indicate whether he was
aware of complainant's EEO activity, and he did not recall any discussion
of the same during the panel meeting. We find that it is reasonable to
conclude that both B-1 and B-2 were aware of complainant's EEO activity.
In this regard, we note that a review of complainant's December 1996
memorandum clearly indicates that he discussed Complaint No. 97-07.
There is no dispute that announcements were not issued and there were
no interviews held concerning the details; therefore, complainant's
memorandum expressing his desire for consideration was most likely before
the panel members. With regard to element (3), the record indicates
that complainant was not selected as Acting Division Director.3 We note,
however, that, other than complainant's assertion, there is no evidence
that he ever applied or volunteered for Detail #2; consequently, we
are not persuaded that he suffered an adverse action here. Finally,
we note that complainant's non-selection in January 1997, as Acting
Division Director, occurred shortly after management became aware of
his EEO activity in December 1996. Therefore, we find that a nexus
exists between complainant's protected activity and his non-selection.
For the foregoing reasons, we find that complainant established a prima
facie case of reprisal discrimination regarding the Acting Division
Director position.
Having established a prima facie case of retaliation, the burden of proof
shifts to the agency to articulate a legitimate, nondiscriminatory reason
for its action. McDonnell Douglas, 411 U.S. at 802-04. The agency may
rebut the presumption of discrimination by clearly setting forth, through
the introduction of admissible evidence, its reasons for its actions.
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254-255
(1981). The agency's burden to articulate a legitimate, nondiscriminatory
reason for its action need only be sufficiently clear to raise a "genuine
issue of fact" as to whether discrimination occurred. Id. at 254.
It merely "frame[s] the factual issue with sufficient clarity so that
[complainant] will have a full and fair opportunity to demonstrate
pretext." Id. at 255-256.
Here, the agency conceded that management "failed to articulate a
specific, clear and individualized legitimate, nondiscriminatory reason"
for not assigning complainant to the Acting Division Director position.
Because the agency failed to meet its burden of production by introducing
evidence to rebut complainant's prima facie case of retaliation, the
Commission finds that the agency discriminated against complainant in
reprisal for his having engaged in protected EEO activity.4 In FAD 2,
the agency erred in finding that complainant did not establish that
management's actions were based on any illegal or discriminatory motive.
Because the agency failed to rebut complainant's prima facie case,
the burden never shifted back to complainant to establish pretext.
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
Consequently, we reverse the agency's finding of no discrimination
regarding the Division Director position. This matter will be remanded
to the agency in accordance with our Order below.
Complaint 98-46
Claim (1)
From June 15, 1997 to April 15, 1998, complainant served as
Office-in-Charge, Engineering Services Center in Nairobi, Kenya.
According to complainant, A-1 did not issue him work requirements,
for the rating period of August 2, 1997 to April 15, 1998, in order
to retaliate and discriminate against him because of his previous EEO
activity and perceived disability. Complainant stated that he had
to work under old requirements. Complainant indicated that that a
Work Requirement Statement (WRS) was used to outline the performance
expectations for the rating period. Without a current WRS, complainant
maintained that he did not know what was expected of him and that this put
him at a disadvantage for promotion. Complainant maintained that when
A-1 realized that Personnel would request a WRS, he tried to get him to
back-date a WRS statement. Complainant stated that he refused and A-1
used white-out to change the WRS date. Complainant was not aware whether
others under A-1's supervision received their WRS in a timely manner.
A-1 maintained that it was not unusual for the WRS to be completed
later in the work period and that back-dating was permissible. He also
indicated that although the WRS is tailored slightly for specific areas,
the work requirements are mostly generic and equivalent throughout the
various regions. A-1 stated that having specific requirements would
not be beneficial because no one could verify whether the individual
was performing above what was required. Accomplishments, he stated,
were reflected in the yearly performance appraisal, not the WRS.
A-1 maintained that complainant could not have been adversely affected
by having generic work requirements or by not having more specific
objectives. Finally, A-1 stated that he was certain that he recommended
complainant for promotion.
Claim (2)
After the bombing of the American Embassy in Nairobi, complainant,
in October 1998, began serving as the Office-in-Charge, Engineering
Services Center (OIC/ESC) and Attach�, United States Embassy, Pretoria,
South Africa. Complainant maintained that he was retaliated against
and subjected to disparate treatment when A-1 reduced the number of
personnel available to him in his region. According to complainant, he
originally had two Security Engineering Officers (SEOs) and two Seabees
working for him in Nairobi. One Seabee's assignment was shortened in
1997, and he was not replaced until complainant moved to Pretoria in
late 1998. Also, a SEO left in May 1998 and was not replaced until 1999.
According to complainant, he had to work both in management and as a
field SEO because of the reduction in manpower. Complainant felt that
A-1 could have distributed personnel resources more evenly, but chose
not to do so. Complainant also accused A-1 of trying to force him and
another employee to resign by creating stress.
A-1 denied that there was a campaign to reduce the personnel available
to complainant. He stated that, over the years, they had to cut
positions and were not authorized to fill vacancies. He acknowledged
that they were extremely short staffed, and that it was not uncommon
for the regions to have extensive gaps at one or more posts. Africa,
he stated, was a location where they tried to get people assigned faster
because it remained understaffed. A-1 also noted the fact that there
was a shortage of Seabees and SEOs because of worldwide conditions.
Complainant, according to A-1, got a good performance evaluation and
was not prevented from meeting his goals.
Claim (3)
Complainant maintained that A-1 would routinely ask him about
his marriage. He stated that A-1 was aware that this angered him
because his marriage had nothing to do with his job or his performance.
Complainant felt that A-1 did this because he knew that it brought back
memories of his past marital problems. A-1, according to complainant,
also invited him to attend a church revival service that counseled
those with marriage problems. A-1 did not recall making the statements
attributed to him by complainant.
Claim (4)
Complainant maintained that A-1 made a racist remark in complainant's car
about another employee. At the time, complainant, his wife and their
Kenyan driver were present. The comment was that a black officer was
promoted because of his race and that he did not deserve the promotion.
Complainant stated that racism and prejudice were "inherently offensive"
to him. A-1 denied ever making any racist remarks to complainant's
spouse and maintained that he never made the comments regarding the
reasons for the black officer's promotion.
Claims (1) and (2)
Assuming, for the purposes of this decision only, that complainant
established a prima facie case of reprisal and disability discrimination,
we find that the agency articulated legitimate non-discriminatory
reasons for its actions, i.e., (1) a generic WRS was common place and
that the forms were often back-dated; and (2) staffing problems occurred
throughout Africa and were not unique to complainant's region. We find no
persuasive evidence of pretext. Other than complainant's assertions that
these matters were based on his previous EEO activity and disability, we
find no evidence that discriminatory animus played any role here. In this
regard, we note that complainant did not establish that similarly situated
individuals from outside of his protected groups were treated differently
with respect to the WRS or the staffing of personnel in their regions.
Accordingly, we affirm the agency's finding of no discrimination.
Claims (3) and (4)
At the outset, we note that the Commission has long held that
a complainant is not aggrieved by remarks or comments that are
unaccompanied by concrete actions. See Backo v.United States Postal
Service, EEOC Request No. 05960227 (June 10, 1996). Nothing in the file
shows that complainant received discipline, a loss of wages or any other
adverse employment action as a result of comments that A-1 was alleged
to have made. To the extent that complainant maintained that claims (3)
and (4) constituted harassment, the Commission does not find that these
matters were sufficiently severe or pervasive to alter the conditions
of his employment such as to state a claim of harassment. See Harris
v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Cobb v. Department of
the Treasury, EEOC Request No. 05970077 (March 13, 1997). Accordingly,
we affirm the agency's finding of no discrimination with regard to claims
(3) and (4).
CONCLUSION
After a careful review of the record, including arguments and evidence
not specifically discussed in this decision, the Commission AFFIRMS
in part and REVERSES in part the agency's final decision. The agency
shall take the corrective action in accordance with this decision and
the ORDER below.
ORDER
Within sixty (60) calendar days of the date this decision becomes final,
the agency is ORDERED to take the following remedial action:
1. The agency shall determine whether complainant is entitled to any
back pay, with interest, and/or other benefits, pursuant to 29 C.F.R. �
1614.501, had he been selected and served as Acting Division Director
during the period that C-1 served.5 The complainant shall cooperate in
the agency's efforts to compute the amount of back pay, interest 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."
2. The agency shall conduct a supplemental investigation pertaining
to complainant's entitlement to compensatory damages incurred as a
result of the agency's discriminatory actions in this matter. The agency
shall afford complainant sixty (60) days to submit additional evidence
in support of a claim for compensatory damages. Complainant shall
submit objective evidence (pursuant to the guidance given in Carle
v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993))
in support of his claim. Within forty-five (45) 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.
3. 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 benefits due complainant, including evidence
that the corrective action has been implemented.6
POSTING ORDER (G0900)
The agency is ordered to post at its Department of State, Bureau of
Diplomatic Security located in Washington, D.C. 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 (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C.� 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action in
an appropriate United States District Court within ninety (90) calendar
days from the date that you receive this decision on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
If you file a civil action, you must name as the defendant in the
complaint the person who is the official agency head or department head,
identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. If you file
a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
____05-02-06______________
Date
1 Seabees are uniformed members of the military.
2 On appeal, the agency mistakenly argued that it had dismissed Complaint
No. 97-02 in its entirety; however, a review of FAD 2 indicates that
this was not the case.
3 C-1 served as Acting Division Director until April 9, 1997 when A-1
assumed the role.
4 Because we find that complainant was subjected to discrimination based
on reprisal, we do not find it necessary to address whether he was also
discriminated against because of his alleged disability.
5 In his February 24, 2004 rebuttal statement, complainant indicated that
he was on excused absence pending medical retirement. For this reason
and the fact that complainant would only have served as Acting Division
Director for a few months, we will not order the agency to retroactively
place him in the position.
6 B-1 and B-2 are no longer employed by the agency; therefore, we will
not order the agency to provide them with EEO training or to consider
taking disciplinary action against them.
??
??
??
??
2
01A43945
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
12
01A43945