EEOC Appeal No. 0120120232
10-24-2014
Complainant v. Dep't of the Army
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120120232
Hearing No. 430-2009-00394X
Agency No. ARCENORF08JUN02794
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's September 14, 2011 final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. For the following reasons, the Commission MODIFIES the final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Environmental Scientist at the Agency's U.S. Corp of Army Engineers, Norfolk District Regulatory Office in Norfolk, Virginia. Complainant's duties include delineating the extent of wetlands on property, which requires work in the field. Delineating wetlands is not an exact science and can be subjective. On several occasions, Complainant disagreed with other Environmental Scientists' decisions about wetlands and threatened to report the disagreement to the Environmental Protection Agency, the Inspector General, or the U.S. Attorney.
Complainant and his supervisor (S1) did not share the same philosophy regarding wetland delineation and had a tense relationship. In 1997, Complainant testified during a sexual harassment investigation that he had advised S1 of his concerns about harassment, but S1 did nothing to address his concerns. Complainant believes that S1 and his second-level supervisor (S2) have subjected him to "ongoing bias" since that investigation. Notwithstanding, Complainant and S1's relationship worsened around Spring 2007, when a proposal was made that the Virginia Department of Environmental Quality (DEQ) would take over one of the Agency's programs. Many employees were upset over the proposal, and Complainant and a co-worker wrote letters opposing the proposal. The Agency subsequently conducted an investigation regarding the letters sent by Complainant and the co-worker after the DEQ responded with a "scathing" letter.
During Chief's meetings, S1 openly discussed concerns about Complainant's work performance. S1 believed that Complainant was not properly handling the Virginia Aquatic Resource Trust Fund. In addition, S1 complained about Complainant's application of regulations in the field. S1's complaints increased at the end of 2007 and into 2008, and involved Complainant's letter regarding the DEQ issue.
Around late May 2008, an Environmental Scientist working in another section (CW1) asked to move to another section because of issues with her section supervisor. The request was discussed at a Chief's meeting. S1 asked Complainant and another employee if they would be willing to switch sections with CW1. Complainant initially said he would think about it, but later said no, as did the other employee. Neither employee was required to switch. Around that same time, Complainant wrote an anonymous letter to the Agency's EEO Office and to the Colonel's office reporting that S1 swatted CW1 on the buttocks six months earlier. CW1 did not report it herself as she stated it did not bother her. Complainant and others encouraged her to report it and, after realizing she was not going to, he made the anonymous report. CW1 informed S1 that someone had reported the incident and that, if she had to make a "wild guess," she thought it was Complainant. S1 told CW1 "That's what I think. He's been after me for awhile."
In addition, around May 2008, Complainant's third-level supervisor (S3) instructed S2 to make the "USUI project" a priority and asked for weekly status updates on the project. S2 told Complainant that this assignment was his highest priority. Complainant told S2 that he would have a permit decision between May 16 and May 21, 2008. S2 learned in June that Complainant still had not issued the permit yet. S2 asked S1 to find out when it would be issued so that he could inform S3. On June 3, 2008, S1 asked Complainant to attend a meeting to brief the attendees on two projects, including the USUI project. Complainant brought along a co-worker as a "witness." Complainant was very defensive during the meeting and the atmosphere became contentious. S1 and S2 questioned why Complainant was deviating from the "standard mitigation ration policy," and Complainant resisted, wanting instead to appeal directly to S3. S1 told Complainant to "just answer the question," and S2 told Complainant that it was "very inappropriate to go directly to [S3] with a technical matter." S2 found communicating with Complainant about his projects very frustrating as Complainant avoided providing information about a project except in the presence of a union official or representative.
Around September 2008, S1 suggested to an Environmental Scientist (CW2) that she should not go out in the field with Complainant. CW2 asked S1 why, and S1 mentioned that it would not be in her best interest to do field work with Complainant.
In Fall 2008, S1 received a call from a consultant who was concerned about delays on one of Complainant's projects and an easement on the property. Complainant was unavailable to discuss the project so S1 called another individual, a Virginia DEQ employee who was working on the project (DEQ1). S1 asked DEQ1 three times if Complainant was causing a delay in the project, and DEQ1 responded that he was not. DEQ1 thought the call was unusual as S1 asked the same question over and over again which made her feel uncomfortable.
In addition, in Fall 2008, S1 took away Complainant's authority to sign certain permits and routine letters and required him to give those documents to S1 for his signature. S1 explained that he revoked Complainant's signature authority because he felt Complainant was doing things "outside the norm and expectations of the section and the branch" and he felt that he "needed to give further review to his work." Further, the Agency received a letter from an attorney accusing Complainant and CW2 of trespassing on land belonging to his client. Complainant requested an ethics investigation to clear his name. S3 asked for an outside party to conduct the investigation because Complainant had already filed an EEO complaint, and S3 wanted to avoid the appearance of retaliation.
Around January 29, 2009, Complainant filed a grievance regarding his 2008 performance evaluation rating. The grievance was forwarded to the Deputy District Commander, who concluded that the performance standards in use for all regulatory department employees were not clear enough and were very subjective. The Deputy District Commander instructed S1 and S2 to change the performance standards that would apply to all staff in the regulatory department.
On September 30, 2008 (and amended several times) Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of religion (Protestant) with respect to promotions and advancement and subjected him to criticism, denigration, and did not defend him.
In addition, Complainant alleged that he was discriminated against and subjected to a hostile work environment in reprisal for prior protected EEO activity as evidenced by multiple incidents including, inter alia, in a June 2008 meeting, his supervisor accused him of violating policy and told him to "just answer the question;" his supervisor asked him to leave the section and made negative comments about him during weekly Chief's meetings; his supervisor subjected him to "over-supervision;" his supervisor told CW2 that it would not be in her best interest to work with Complainant; his supervisor told Complainant's co-worker that Complainant had been "trying to get me for about 10 years;" his supervisor questioned co-workers and consultants about Complainant's performance; the Agency developed performance objectives targeted at damaging Complainant; and the Agency engaged in disparate enforcement of policies against Complainant.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The AJ held a hearing on May 6, 2011, and issued a decision on July 25, 2011.1
In the decision, the AJ initially determined that Complainant failed to establish a prima facie case of discrimination as to his religious-based claims. The AJ found that there was no evidence that S1 knew of Complainant's or his comparator's religions. Further, the AJ determined that there was no evidence that any of the Agency's actions were motivated by any employee's religion or childhood religious affiliation. Accordingly, the AJ determined that Complainant had not been discriminated against based on his religion.
Next, the AJ concluded that the Agency had not retaliated against Complainant as to most of Complainant's claims. Specifically, the AJ determined that S1 and Complainant had numerous professional disagreements about technical matters and that S1's "just answer the question" response would not have dissuaded any reasonable person from engaging in protected EEO activity. Further, S1 asked Complainant about leaving the section to accommodate CW1, who wished to swap sections. S1 also asked another co-worker if she was interested in switching sections with CW1 around the same time.
As to S1's comments during the weekly Chief's meetings, the AJ found that there was no evidence of retaliatory animus in S1's comments about Complainant's handling of the Virginia Aquatic Resource Trust Fund, his application of regulations in the field, and his letter regarding the DEQ issue. With respect to S1's comment that Complainant had been "trying to get him for a long time," the AJ found that S1 was simply responding to CW1's statement that she believed that Complainant made the anonymous report about the buttocks-swatting incident. The AJ concluded that employees were aware of the long-standing tension between Complainant and S1, and there was no evidence that the comment was based on retaliatory animus.
Regarding Complainant's claim that the Agency disparately enforced policies against him, Complainant identified two specific policies: the trespass allegation investigation and his new supervisor's statement that he should have obtained prior approval before an interview with a local newspaper reporter. With respect to the trespass investigation, the evidence demonstrated that the investigation was conducted because Complainant requested it. The AJ found that an outside investigator was requested to avoid the appearance of reprisal. Moreover, Complainant was not subjected to any disciplinary action as a result of the investigation. Finally, as to the response about the newspaper report, the AJ determined that the email was at most a minor annoyance that would not deter a reasonable person from engaging in protected activity. The AJ concluded that Complainant had not presented any evidence showing that the Agency's reasons for its actions were pretextual. As a result, the AJ found that Complainant had not been retaliated against as to these claims.
The AJ found, however, that S1 had retaliated against Complainant when he took away Complainant's signature authority, his comments to CW2 that it would be in her best interest not to work with Complainant, and his questioning of Complainant's co-workers and consultants about his performance. The AJ found that these actions would dissuade a reasonable person from engaging in the EEO process, and S1 had no legitimate, non-retaliatory reason for the conduct.
The AJ then considered Complainant's claims for remedies. First, the AJ found that Complainant established an entitlement to compensatory damages. As to non-pecuniary damages, Complainant presented evidence of his damages in his testimony and attempted to introduce medical records; however, the AJ sustained the Agency's objection as Complainant failed to produce the medical records during discovery or with the pre-hearing reports. Nonetheless, the evidence showed that Complainant experienced emotional and physical symptoms, some of which were caused by the retaliation, including muscular tension, eye twitching, and loss of interest in work and leisure activities. Complainant testified that his pre-existing conditions were exacerbated by the Agency's conduct. However, the AJ determined that the evidence showed his symptoms became worse, and his treatment increased, before the discriminatory incidents happened. As a result, the AJ awarded Complainant $8,000.00 in non-pecuniary damages.
With respect to pecuniary damages, the AJ found that the evidence showed that Complainant's chiropractic visits increased and his psychiatric visits resumed in June 2008, while the Agency's retaliatory acts began in Fall 2008. Moreover, Complainant failed to prove that his increased chiropractic treatment and psychiatric visits were entirely attributable to the Agency's discriminatory conduct. Many of Complainant's symptoms were caused by going through the EEO process, by acts that were found to be non-discriminatory, or other events for which the Agency was not responsible. Accordingly, the AJ awarded Complainant 25% of the cost for his increased chiropractic treatments and psychiatric visits beginning on September 1, 2008.
Regarding attorney's fees, Complainant's counsel submitted a fee petition requesting $22,946.50 in attorney's fees and $39.93 in costs. The AJ noted that the submitted invoices were vague or overly general in that some of the descriptions were "discuss case" and "meet with [another attorney]." Further, the AJ noted that some entries on the invoices, such as time expended to print, scan, and copy documents, should be considered clerical functions more properly absorbed by "the general overhead cost of practicing law." Additionally, the AJ determined that some of the descriptions combined different tasks and seemed excessive. Finally, the AJ noted that Complainant was successful in proving discrimination with respect to only three of many incidents and the majority of the claims were factually distinct. Thus, after a careful review, the AJ reduced the attorney's fees request by 50% and awarded Complainant $11,473.25 in attorney's fees and $39.93 in costs. Finally, the AJ ordered the Agency to provide training to the responsible management officials and to post a notice. The Agency subsequently issued a final order fully implementing that AJ's decision. The instant appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant alleges that the AJ and the Agency committed several errors during the investigative and hearing processes. Complainant argues that the enormity of the Agency's subterfuge, false statements, and fraud upon the AJ made it virtually impossible for him to impeach Agency witnesses. Further, Complainant contends that he showed that his managers committed 18 acts of unlawful reprisal over three years and that he is entitled to $33,000.00 to $55,000.00 in non-pecuniary damages. Further, Complainant argues that he is entitled to 75% of the medical costs of psychiatric and chiropractic treatments that were directly associated with the actions of the managers. Accordingly, Complainant requests that the Commission modify the AJ's award.
STANDARD OF REVIEW
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. Nat'l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-16 (Nov. 9, 1999).
ANALYSIS AND FINDINGS
The AJ's Handling of the Hearing
At the outset, the Commission will address Complainant's arguments related to the AJ's handling of the hearing. Complainant claims that he did not have sufficient time to present his case and impeach Agency witnesses. Complainant complains that the AJ limited the hearing to one day instead of granting him a multiple-day hearing. The Commission notes that Complainant, who was represented by counsel, raised no objections at the hearing regarding the amount of time allowed for the hearing. In addition, Complainant claims that his claims were "rewritten, summarized, and twisted" by the Agency. Complainant filed a Motion to Consolidate and Clarify Claims prior to the hearing, which the AJ denied. Complainant again raised no objections at the hearing regarding the framing of his claims. The Commission notes that EEOC regulations and Commission precedent provide AJ's with broad discretion in matters relating to the conduct of a hearing. See 29 C.F.R. � 1614.109(e); EEOC Management Directive 110 for 29 C.F.R. Part 1614 (EEOC MD-110), at 7-5 (1999). The record does not reveal any procedural errors that disadvantaged Complainant's case. Thus, the Commission finds that Complainant failed to establish that the AJ abused her discretion in the manner in which she managed and adjudicated this case
Disparate Treatment and Reprisal
Turning to the merits of the instant complaint, to prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13. To establish a prima facie case of reprisal, Complainant must show that (1) he engaged in protected EEO 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 his protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
First, the Commission agrees with the AJ that Complainant failed to establish a prima facie case of religious discrimination. There is no evidence that S1 knew of Complainant's or his co-workers' religions prior to Complainant's EEO complaint or that any of his actions were motivated by religious animus. Thus, the Commission finds that substantial record evidence supports the AJ's finding that Complainant was not discriminated against based on his religion.
Next, the Commission finds that the AJ's determination that the Agency articulated legitimate, non-retaliatory reasons for most of its actions is supported by substantial record evidence. The evidentiary and testimonial record reveals that Complainant and S1 had a contentious work relationship at times; however, many of Complainant's allegations are examples of workplace disagreements between a subordinate and a supervisor. For example, the evidence showed that S1 and Complainant clashed during meetings regarding the USUI project, the Virginia Aquatic Resource Trust Fund, and other issues. Further, S1 once asked Complainant (and another co-worker) about his interest in leaving the section; however, S1 testified that he did so only because an employee from another section wanted to transfer. Hr'g Tr., at 299-301. When Complainant declined, S1 took no further action. These incidents amount to professional disagreements, and there is no evidence that S1 acted with retaliatory animus.
Likewise, there is no evidence that Complainant was subjected to disparate policy enforcement based on his protected EEO activity. For instance, Complainant requested an ethics investigation into the trespass allegation a neutral, third-party investigator conducted the investigation to avoid any appearance of Agency reprisal against Complainant. Hr'g Tr., at 356. Additionally, Complainant filed a grievance over his 2008 performance evaluation rating, and it was determined that the performance standards were not clear enough. As a result, the standards were revised. Hr'g Tr., at 103-04. Complainant failed to show that the Agency's reasons for its actions as to these claims were pretextual. As a result, the Commission finds that the Agency did not retaliate against Complainant for his prior protected EEO activity as to these claims.
The Commission agrees, however, that Complainant established that the Agency subjected him to reprisal when S1 revoked his signature authority in Fall 2008; when S1 told a co-worker that it would not be in her best interest to work with Complainant in September 2008; and when S1 questioned others about Complainant's performance. With respect to the signature revocation, S1 testified that he felt he needed to "give further review to Complainant's work" and that Complainant had done "things that were outside the norm and expectations of the section and branch." Hr'g Tr., at 257. The AJ did not find S1's testimony convincing, and there is no evidence that Complainant had been issued any discipline for his alleged errors. Thus, substantial record evidence supports that the Agency's reasons for revoking Complainant's signature authority were pretext for unlawful reprisal.
In September 2008, S1 discouraged CW2 from working with Complainant. S1 testified that he made this comment because of Complainant's "influence" on her. Again, Complainant had no record of performance deficiencies or unacceptable behavior, and S1 failed to provide any specific examples of what "influence" he was concerned. As a result, the AJ found that the record demonstrated by a preponderance of the evidence that S1's reasons for his action was reprisal for prior EEO activity.
Finally, S1 retaliated against Complainant when he questioned others about Complainant's performance. S1 attempted three times to get a negative response from DEQ1 about Complainant's possible involvement in delays on a project in Fall 2008. While S1 denied questioning DEQ1, the AJ found that DEQ1's testimony was more convincing. The Commission agrees with the AJ that repeatedly attempting to solicit negative information from a third party would dissuade a reasonable person from participating in the EEO process and that there was no legitimate, non-retaliatory reason for S1's actions. Accordingly, the Commission finds that Complainant established that the Agency subjected him to reprisal for his prior protected EEO activity as to these three claims.
REMEDIES
Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant who establishes his or her claim of unlawful discrimination may receive, in addition to equitable remedies, compensatory damages for past and future pecuniary losses (i.e., out of pocket expenses) and non-pecuniary losses (e.g., pain and suffering, mental anguish). 42 U.S. C. �1981a(b)(3). For an employer with more than 500 employees, such as the agency, the limit of liability for future pecuniary and non-pecuniary damages is $300,000. Id.
Non-pecuniary Compensatory Damages
Non-pecuniary losses are losses that are not subject to precise quantification, i.e., emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, injury to character and reputation, injury to credit standing, and loss of health. See EEOC Notice No. 915.302 at 10 (July 14, 1992). There is no precise formula for determining the amount of damages for non-pecuniary losses except that the award should reflect the nature and severity of the harm and the duration or expected duration of the harm. See Loving v. Dep't of the Treasury, EEOC Appeal No. 01955789 (Aug. 29, 1997). The Commission notes that non-pecuniary compensatory damages are designed to remedy the harm caused by the discriminatory event, rather than punish the Agency for the discriminatory action. Furthermore, compensatory damages should not be motivated by passion or prejudice or "monstrously excessive" standing alone but should be consistent with the amounts awarded in similar cases. See Ward-Jenkins v. Dep't of the Interior, EEOC Appeal No. 01961483 (Mar. 4, 1999).
On appeal, Complainant contends that he is entitled to $33,000.00 to $55,000.00 in non-pecuniary damages. Complainant claims that the persecution by his managers dominated his sleep and thoughts every day, damaged his reputation and co-worker relationships, and increased his anxiety. Complainant contends that he has increased his visits to his psychiatrist and increased his intake of anti-depressant/anti-anxiety medication. In addition, Complainant alleges that his spine and back problems were aggravated. The AJ determined that, based on Complainant proving that only three of the alleged incidents were retaliatory and that his stress; depression; and spine/back problems were pre-existing conditions, he was only entitled to $8,000.00 in non-pecuniary damages.
After careful consideration of the evidence of record, the Commission finds that an award of $10,000.00 for non-pecuniary, compensatory damages is appropriate. This amount takes into consideration the severity of the harm suffered and is consistent with prior Commission precedent. See Rowan v. Dep't of Veterans Affairs, EEOC Appeal No. 0120070384 (June 19, 2009) (Commission awarded complainant $10,000 for non-pecuniary damages where complainant established that at least some of the exacerbation of his stress, humiliation, anxiety, sleeplessness, fears of termination, and depression were attributable to the Agency's discriminatory conduct); Decatur v. Dep't of Veterans Affairs, EEOC Appeal No. 0120110527 (Sept. 7, 2012) ($10,000 awarded where Agency's discriminatory actions were cause of exacerbation of depression, anxiety, inability to concentrate, and feelings of persecution); Eberly v. U.S. Postal Serv., EEOC Appeal No. 07A30085 (May 20, 2004) ($10,000.00 in non-pecuniary damages awarded for reprisal causing complainant to experience depression, sleeplessness, anxiety, low self-esteem, and nightmares, but the majority of symptoms were due to prior, unrelated incident).
Pecuniary Compensatory Damages
Pecuniary losses include quantifiable out-of-pocket expenses that are incurred as a result of the discriminatory conduct. To recover damages, the complaining party must prove that the employer's discriminatory act or conduct was the cause of his loss. Enforcement Guidance: Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991 (Enforcement Guidance), EEOC Notice No. 915.002, at 8 (July 14, 1992). With regard to Complainant's request for pecuniary damages, the Commission finds that the AJ properly determined that Complainant was only entitled to 25% of the cost of his increased chiropractic and psychiatric treatments beginning on September 1, 2008. Complainant failed to show that the increased visits and treatments were solely due to the Agency's actions. Substantial record evidence indicated that Complainant resumed and increased his visits and treatments in June 2008, while the Agency's retaliation began later in September 2008. Therefore, much of Complainant's treatments were related to other non-retaliatory events. Accordingly, the Commission finds that the AJ properly awarded Complainant 25% of the costs for his increased treatments.
Finally, the Commission notes that Complainant raised no challenges to the AJ's award of attorney's fees and costs.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, the Commission MODIFIES the final order and directs the Agency to comply with the Order below.
ORDER
Within 120 days of the date this decision becomes final, the Agency is ordered to take the following remedial action to the extent it has not already done so:
1. Pay Complainant $10,000.00 in non-pecuniary compensatory damages.
2. Pay Complainant 25% of the cost for his increased chiropractic treatments and 25% of his psychiatric visits beginning on September 1, 2008.
3. Pay Complainant a total of $11,473.25 in attorney's fees and $39.93 in costs.
4. Provide two hours training for the responsible management officials (Complainant's first and second-level supervisors) with an emphasis on retaliation.
5. Consider taking appropriate disciplinary action against the responsible management officials. The Commission does not consider training to be a disciplinary action. 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 reasons for its decision not to impose discipline. If the management officials have left the Agency's employ, the Agency shall furnish documentation of their departure dates.
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 (G0914)
The Agency is ordered to post at the Detroit Air Traffic Control Tower copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 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 10 calendar days of the expiration of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 (M0610)
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), at 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 (S0610)
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. 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 (Z0610)
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
October 24, 2014
Date
1 The AJ dismissed Complainant's claim that S2 made inappropriate comments during the EEO mediation for failure to state a claim. The Commission has previously held that settlement discussions are to be treated as confidential and privileged in order to facilitate a candid interchange in order to settle disputes informally. Therefore, to allow a new complaint based on mediation discussions would defeat this purpose. See Gomez v. U.S. Postal Serv., EEOC Appeal No. 0120080526 (Oct. 21. 2009) (finding Complainant's claim that he was tricked into participating in REDRESS and was displeased with the mediation outcome failed to state a claim of discrimination); Leonhardt v. Dep't of Army, EEOC Appeal No. 0120065185 (Dec. 7, 2007) (citing Montague v. Dep't of the Army, EEOC Request No. 05920321 (May 7, 1992), in finding that statements made by agency officials and managers during mediation could not be grounds for a claim of discrimination). Accordingly, the Commission finds that the AJ properly dismissed this claim.
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0120120232
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