01A00116
08-14-2002
Denise D. Quick v. Department of the Air Force 01A00116 August 14, 2002Denise D. Quick, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Appeal No. 01A00116 Agency No. DAY98AF0285E Hearing No. 220-99-5057X
Denise D. Quick v. Department of the Air Force
01A00116
August 14, 2002Denise D. Quick,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Appeal No. 01A00116
Agency No. DAY98AF0285E
Hearing No. 220-99-5057X
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning her equal employment opportunity (EEO) complaint of unlawful
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. The appeal
is accepted pursuant to 29 C.F.R. � 1614.405.
Believing that she was discriminated against on the bases of her race and
sex, complainant, a Personnel Security Specialist at the agency's National
Air Intelligence Center (NAIC), filed an informal complaint against her
first-level supervisor, the acting Chief of Security Operations (RMO).
RMO then filed a defamation and intentional infliction of emotional
distress action in state court seeking five million dollars in damages.
The alleged defamatory statements primarily included complainant's charge
of sex and race discrimination. Complainant filed this EEO complaint
alleging that RMO's actions were unlawful under the anti-retaliation
provision of Title VII. An EEOC Administrative Judge issued a decision,
without a hearing, finding that complainant established retaliation
as referenced above. The agency rejected the Administrative Judge's
decision and complainant now appeals.
BACKGROUND
The record reveals that complainant filed an informal complaint pursuant
to 29 C.F.R. � 1614.106 (hereinafter �the informal complaint�) on
February 11, 1997, charging RMO with race discrimination and sexual
harassment. The agency and complainant resolved the complaint by
settlement agreement (agreement) on February 28, 1997. RMO played
no role in negotiating the agreement. Pursuant to the agreement,
the agency promised that �there will be no reprisal action� and that
�[d]uring the time [RMO] is complainant's supervisor he will not make
reference to any prior grievances or EEO complaints, to include this
complaint. [RMO's] conversations with the complainant will be confined
to work-related topics.� Under the agreement, RMO retained supervisory
authority over complainant.
RMO's supervisor, Chief of the Security Office (RMO2), counseled RMO
on his obligations under the agreement. After this initial counseling
session, the agency took no action to further counsel RMO regarding his
obligations as an agency supervisor not to retaliate against complainant.
RMO's dissatisfaction with the resolution of the informal complaint
was known throughout the workplace. RMO2's affidavit reveals that RMO
was very upset about the informal complaint, that RMO stated in the
workplace that he was talking to his lawyer, that �he was going to do
this or going to do that,� and that RMO made �comments/threats that
he was going to file a civil action.� Report of Investigation (ROI)
at Page 156. RMO's announced intentions concerned RMO2, and therefore,
RMO2 sought guidance from his supervisor, the agency's Chief of Future
Forces (RMO3). RMO3's affidavit reveals that RMO told him on �several
occasions� about legal actions he decided to take against complainant.
ROI at 151. The agency stripped RMO of all supervisory authority and
reassigned him on April 1, 1997, when complainant contacted the agency's
security police to report that RMO assaulted her.<1>
Following RMO's reassignment, comments about the impending civil action
continued. RMO's new supervisor (S1) indicates that RMO told him (S1)
that he (RM0) was going to file a civil action against complainant.
S1's affidavit reveals that he was concerned about RMO's comments and
contacted the Civilian Personnel Office. The Civilian Personnel Office
advised S1 to stay out of the issue. ROI at 162-164.
On April 22, 1997, RMO filed a civil action against complainant for
defamation and intentional infliction of emotional distress in the Court
of Common Pleas, Greene County, Ohio. RMO alleged that complainant's
February 11, 1997, race discrimination and sexual harassment allegations
were defamatory. RMO also alleged that complainant made defamatory
statements in her April 1, 1997, statement to security police.
RMO sought five million dollars in damages. The civil complaint and
summons were served on complainant at work. It appears from the record
that complainant's supervisor called complainant to inform her to report
to the security police building. When complainant arrived at the security
police building, she was served with a summons and RMO's civil complaint.
Complainant filed a formal EEO complaint on June 1, 1997, contending that
RMO filed the state court suit in retaliation for her informal complaint.
By final agency decision dated June 3, 1997 (FAD1), the agency dismissed
complainant's complaint on the grounds that it failed to state a claim.
Complainant appealed FAD1 to the Commission and in Quick v. Department of
the Air Force, EEOC Appeal No. 01975552 (April 30, 1998), we vacated
FAD1. In remanding the complaint, we noted that it stated a claim of
retaliation and we ordered the agency to process the remanded claims in
accordance with our regulations.
Complainant sought assistance from the agency, without result. She then
retained the services of an attorney to defend herself against RMO's civil
action. Still believing that the agency should assist her, complainant
finally wrote a letter to her United States Senator. The Senator's
office wrote to the agency on complainant's behalf. In response to her
Senator's inquiries, the agency assisted complainant in making a request
for government representation in the lawsuit because the lawsuit arose
from the performance of complainant's official duties, specifically from
fulfilling her duty to report criminal assaults, sexual harassment and
race-based harassment. Based upon this request, the U.S. Attorney for the
Southern District of Ohio substituted the United States for the defendant
and removed the suit to federal district court on August 7, 1998.
Meanwhile, pursuant to our remand order issued in April 1998, the agency
conducted an investigation. At the conclusion of the investigation,
complainant requested a hearing before an EEOC Administrative Judge.
Upon requests by both parties, the Administrative Judge issued a decision
without a hearing. The Administrative Judge found the agency liable
for the filing of RMO's civil action. On August 27, 1999, the agency
issued a final agency decision (FAD2), rejecting the Administrative
Judge's decision. In so finding, the agency concluded that it could
not be held liable because it could not prevent RMO from filing his
civil suit. Complainant now appeals FAD2.
ANALYSIS AND FINDINGS
I.
We are charged with reviewing the Administrative Judge's conclusions,
and the final agency decision rejecting them, under a de novo standard
of review. See 29 C.F.R. � 1614.405(a); EEOC Management Directive (MD)
110, as revised, November 9, 1999, Chapter 9, page 9-16. The de novo
standard requires that the Commission examine the record without regard
to the factual and legal determinations of the previous decision maker.
On appeal, the Commission will review the documents, statements, and
testimony of record, including any timely and relevant submissions of
the parties, and the Commission will issue its decision based on the
Commission's own assessment of the record and its interpretation of
the law.
This complaint raises the issue of whether complainant was subjected to a
hostile work environment from the date she settled the informal complaint,
on February 28, 1997, until the date when the agency assisted her in
applying for government representation ( March 26, 1998). We note that
complainant raised the harassment issue herself, saying, in a letter to
the agency's EEO investigator, that she was subjected to a hostile work
environment. See ROI Page 101. The record reflects that complainant's
feelings that she was being harassed subsided when the agency assisted
her in obtaining government representation. For these reasons, we will
consider whether complainant was subjected to a hostile work environment
between February 28, 1997, and March 26, 1998.
II
It is well-settled that harassment based on an individual's prior
EEO activity is actionable. Roberts v. Department of Transportation,
EEOC Appeal No. 01970727 (September 15, 2000) (citing Ray v. Henderson,
217 F.3d 1234 (9th Cir. 2000); Drake v. Minnesota Mining & Mfg. Co.,
134 F.3d 878, 886 (7th Cir. 1998)). In order to establish a claim of
harassment based upon her prior EEO activity, complainant must show
that: (1) she engaged in prior EEO activity; (2) she was subjected
to unwelcome conduct; (3) the harassment complained of was based her
prior EEO activity; (4) the harassment had the purpose or effect of
unreasonably interfering with her work performance and/or creating
an intimidating, hostile, or offensive work environment; and (5)
there is a basis for imputing liability to the employer. See McCleod
v. Social Security Administration, EEOC Appeal No. 01963810 (August 5,
1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Many of these issues are not disputed by the agency.
First, complainant engaged in protected EEO activity with the full
knowledge of agency supervisors, both when she filed her informal
complaint, and when she settled that complaint. EEOC Compliance Manual,
Section 8 (Retaliation) at 8-10, (May 20, 1998) (�Compliance Manual
(Retaliation)�) (In the federal sector, once a federal employee contacts
an EEO counselor she is participating in protected activity).<2> Second,
RMO's conduct was unwelcome. The record reveals that complainant made
contemporaneous complaints about RMO's threats, the actual filing of
the civil action, and the post-civil action work environment. See EEOC
Policy Guidance on Current Issues of Sexual Harassment, N-915-050,
No. 137, fn. 7 (March 19, 1990) (contemporaneous complaint relevant to
determination on welcomeness). Third, the agency concedes that RMO's
threats and the filing of his state court action primarily concern the
informal complaint. Fourth, the agency's conduct and the acts of its
manager, RMO, had the purpose or effect of unreasonably interfering with
complainant's work performance and/or creating an intimidating, hostile,
or offensive work environment.
In any case involving allegations of a hostile work environment, the
challenged conduct must be judged looking at all of the circumstances
including the frequency of the conduct; its severity, whether it is
physically threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee's work performance.
Faragher v. Boca Raton, 524 U.S. 775 at 787-788 (quoting Harris at 23).
The harasser's conduct should be evaluated from the objective viewpoint of
a reasonable person in the victim's circumstances. Enforcement Guidance on
Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994).
In considering whether complainant was subjected to a hostile work
environment, we have also consulted Title VII's anti-retaliation
provision, Commission guidance interpreting it, and relevant court and
Commission case law. We take this opportunity to remind the parties of
this authority. Section 2000e-3(a) of Title VII prohibits retaliation
against a worker for engaging in protected activity. The Commission
interprets Title VII to prohibit threats and harassment in or out
of the workplace, or any other adverse treatment that is reasonably
likely to deter protected activity by the aggrieved or other employees.
Compliance Manual (Retaliation) at 8-14, 8-15. The Commission's case
law provides that it is unlawful retaliation for a manager to threaten to
file a civil action in response to an EEO complaint. Boyd v. Department of
Transportation, EEOC Appeal No. 01955276 (October 10, 1997). Furthermore,
the Commission interprets Title VII to make it unlawful to retaliate
even if the individual engaging in the protected activity makes false
statements that would otherwise support a claim of defamation under
state law. See, e.g., Pettway v. American Cast Iron Pipe Co., 411 F.2d
998, 1003-08 (5th Cir.1969).
It is within the context of this authority that we find that complainant
was subjected to a hostile work environment on the basis of her protected
EEO activity. The hostility began once the agency settled the informal
complaint, and continued for one year following the filing of RMO's civil
action. Once the agency settled the informal complaint, complainant's
immediate supervisor, RMO, filled the work environment with threats
that he would file a civil action to vindicate himself. Any reasonable
person, standing in the position of complainant, would find these threats
hostile and intimidating. The threats left complainant to wonder if a
civil action would be filed against her, whether she could afford to pay
for her own defense, whether upper-level management was supporting the
civil action, and whether she would be served with process at work, in
the presence of her co-workers and subordinate employees. A reasonable
person would be placed in ever-present peril that a retaliatory civil
suit would be used to control other aspects of the work relationship.
Complainant endured continuing hostility even after RMO was stripped
of his managerial authority. RMO served complainant with a civil suit,
at work, during her regular working hours. RMO also continued to make
comments in the workplace about his civil action. Complainant was
forced to hire an attorney to defend herself against RMO's five million
dollar civil suit. We note that after complainant was served with
the civil complaint and summons at work, she took medical leave and
was too humiliated to return to her position. The agency transferred
complainant to a new position. The record establishes that complaint
was financially drained, scared, and intimidated. From the facts of
this case, we conclude that reasonable people would be deterred from
pursuing their rights under Title VII.
When we weigh the severity of the work environment maintained by the
agency against the anti-retaliation authority previously cited, we
conclude that complainant's work environment was sufficiently severe
as to create a hostile work environment. We also conclude that RMO's
hostility was pervasive in the workplace. The environment created by
RMO's conduct and the agency's inaction place an undue and potentially
chilling burden on the complaint process; namely, the need to weigh the
risk of threats and the cost of defending against a tort action against
the right to obtain a remedy for discrimination. As such, we conclude
that the environment, created by RMO and maintained by the agency,
was reasonably likely to deter others from engaging in protected activity.
Finally, despite our finding that complainant was subjected to a hostile
work environment, we must nevertheless consider whether there is a basis
upon which to impute liability to the agency. As an initial matter, we
find no basis upon which to hold the agency liable for RMO's retaliatory
defamation suit. In so finding, we note that the agency did not cause
the filing of the civil action. Compare Berry v. Stevinson Chevrolet,
74 F. 3d 980, 986 10th Cir. 1996 (liability is appropriate where the
employer caused malicious prosecution of charging party). Nor are
we persuaded by the Administrative Judge's rationale, which held the
agency responsible for RMO's filing of the civil action under the theory
of respondeat superior. RMO's private right to file a civil action,
exercised without apparent agency involvement, and isolated from the
work environment is a discrete act. Complainant has failed to present
justification for imputing liability to the agency for the filing of the
civil action, itself. However, there is adequate authority to attribute
the creation of a hostile work environment to the agency.
RMO was an agency manager from February 28, 1997, until April 1, 1997.
Where the harasser is a management official and the harassment does
not result in a tangible employment action being taken against an
employee, the employer may raise an affirmative defense to liability.
Burlington Industries, Inc., v. Ellerth, 524 U.S. 742 at 765 (1998);
Faragher at 807. The agency can establish this defense, which is
subject to proof by a preponderance of the evidence, by demonstrating:
(a) that it exercised reasonable care to prevent and correct promptly
any harassing behavior; and (b) that complainant unreasonably failed to
take advantage of any preventive or corrective opportunities provided
by the agency or to avoid harm otherwise.<3>
With respect to (a), whether the agency acted reasonably to prevent and
correct retaliatory harassment, we again consult our anti-retaliation
authority. Agencies must not tolerate retaliation, they must provide
training to managers regarding the anti-retaliation laws, and they
must take appropriate disciplinary action against employees who
retaliate. Unlawful Harassment Enforcement Guidance at 18; 29 C.F.R. �
1614.102(a)(5); 29 C.F.R. � 1614.102(a)(6). A violation may be found
if an employer retaliates against a worker for engaging in protected
activity through threats, harassment in or out of the workplace, or any
other adverse treatment that is reasonably likely to deter protected
activity by that individual or other employees. Compliance Manual
(Retaliation) 8-15.
The record reflects the agency's failure to enforce anti-retaliation
policies. The agency failed to adequately advise RMO against retaliating
against complainant for her February 11, 1997, informal complaint and
resultant settlement agreement. While RMO2 met with RMO after executing
the agreement and, according to RMO2's notes, instructed RMO against
�...taking any actions that could be viewed as an attack or retaliatory
in nature,� RMO continued to make it known in the workplace that he was
angry that complainant filed the EEO complaint against him. RMO also made
threats in the workplace that he was talking to his lawyer and that he
was going to file a civil action against complainant. RMO2 became aware
of these statements and reported them to his supervisor RMO3. Following
RMO's reassignment, comments about the impending civil action continued.
RMO's new supervisor, S1, reported RMO's threats to the Civilian Personnel
Office. The Civilian Personnel Office advised S1 to stay out of the
issue. Despite the agency's widespread familiarity with RMO's threats,
the record fails to establish that the agency took its responsibility,
not to tolerate retaliation, seriously. The agency acknowledges becoming
aware of RMO's civil action shortly after RMO filed it. Not until over
one year after learning of RMO's civil suit, did the agency take action by
intervening in RMO's civil action, substituting itself as the defendant,
and removing the matter to federal district court.
With respect to (b), we find that complainant acted reasonably.
Complainant contacted RMO2 to report RMO's threats and otherwise requested
that the agency take steps which may have prevented the harassment.
RMO3 likewise was informed but failed to act to alleviate the conditions.
Three levels of agency management were informed but failed to take prompt
corrective action.
We now consider whether the agency is liable for RMO's conduct after
the agency stripped him of his management authority on April 1, 1997.
The agency is liable for the hostile work environment created during
this period, unless it can show that it took immediate and appropriate
corrective action. We find that the agency failed to take immediate
and appropriate corrective action. The agency acknowledges becoming
aware of RMO's civil action shortly after RMO filed it. Despite the
agency's knowledge of RMO's suit and despite complainant's pleas
to intervene, the agency failed to respond until after it received
an inquiry from complainant's Senator, approximately one year later.
The agency failed, until that time, to inform complainant of her right
to request representation under 28 C.F.R. � 50.15. There is no evidence
that the agency took any steps to dispel the chilling effect placed on
the work environment by RMO's retaliation. The agency further failed
to instruct RMO not to make retaliatory comments about the civil suit
in the workplace. For these reasons we find that the agency is liable
for maintaining a hostile work environment during this period.
Compensatory Damages
Having found that the agency is liable for subjecting complainant
to a hostile work environment from the date she settled the informal
complaint, on February 28, 1997, until the date that the agency assisted
her in applying for government representation, March 26, 1998, we now
turn to the issue of complainant's entitlement to compensatory damages.
The Administrative Judge's compensatory damages award, which was based on
a finding of agency liability for the actual filing of RMO's civil action,
is an inadequate remedy for the hostile work environment maintained by
the agency. Recognizing the larger scope of potential liability, and also
recognizing the Administrative Judge's error in holding the agency liable
for the filing of the civil action itself, we remand this complaint to
the Administrative Judge for a determination on compensatory damages.<4>
When discrimination is found, the agency must provide complainant with
an equitable remedy that constitutes full, make-whole relief to restore
her as nearly as possible to the position she would have occupied absent
the discrimination. See, e.g., Franks v. Bowman Transportation Co.,
424 U.S. 747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405,
418-19 (1975); and Wan v. United States Postal Service, EEOC Appeal
No. 01995204 (July 11, 2001). On remand, the Administrative Judge must
determine whether the agency unlawfully failed to assist complainant
in her defense against RMO's civil suit. However, the agency is only
responsible for those damages arising from its own unlawful conduct and
not RMO's civil suit itself.
If the Administrative Judge determines that the agency unlawfully failed
to assist complainant in her defense against RMO's civil suit, then
she may be entitled to reimbursement for the costs of her defense.
On remand, the AJ shall consider the agency's failure to assist
complainant is unlawful if (1) the agency was motivated by retaliation
when it did not assist her in obtaining government representation; or
(2) the agency acted unreasonably in failing to assist her in obtaining
government representation. We note that complainant was entitled to
government representation under 28 U.S.C. � 50.15 while defending a
private lawsuit arising out of actions performed within the scope of her
duties. The agency will be able to establish that it acted reasonably,
and therefore lawfully, if its legal unit determined that the complainant
was not acting within the scope of her duties or if it received outside
advice to this effect.
CONCLUSION
We find that the agency is liable for retaliatory harassment.
Accordingly, the Commission vacates the final agency decision issued
on August 27, 1999, and remands this matter to the Administrative Judge
for further processing consistent with this decision and the Order below.
ORDER
The agency is ORDERED to take the following remedial action:
1. The issues of compensatory damages as well as complainant's
entitlement to reimbursement of attorney's fees incurred by her
prior to the substitution of the government as the defendant in the
RMO's civil action are REMANDED to the Hearings Unit of the Cleveland
District Office. Thereafter, the Administrative Judge shall issue a
decision on this issue in accordance with 29 C.F.R. � 1614.109, and
the agency shall issue a final action in accordance with 29 C.F.R. �
1614.110 within forty (40) days of receipt of the Administrative Judge's
decision. The agency shall submit copies of the Administrative Judge's
decision and the final agency action to the Compliance Officer at the
address set forth below.
2. The agency shall provide training to managers responsible for the
agency's actions in this matter, regarding their obligations and duties
imposed by the anti-retaliation regulations.
3. The agency shall take all appropriate corrective, curative or
preventive action to ensure that such harassment by all relevant
agency officials does not recur. Such corrective steps shall include
reviewing and revising agency policies and procedures relating to the
investigation and prevention of harassment so as to provide prompt and
thorough investigation of such complaints, and appropriate and effective
remedial corrective actions in response to such complaints. The agency
shall also review the matters giving rise to the instant complaint to
determine the appropriateness of disciplinary actions against agency
officials involved and responsible. The agency shall record its basis
for deciding whether or not to take disciplinary action, submit such
records to the EEOC pursuant to paragraph four (4) below, and maintain
such records for a period of no less than five (5) years from the date
this finding of discrimination becomes final.
3. The agency shall post at the agency's National Air Intelligence
Center 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.
4. The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commissions'
Decision. " The report shall include supporting evidence that the
corrective action has been implemented.
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 (R0900)
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
August 14, 2002
__________________
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
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 or retaliation
against any employee or applicant for employment because of that person's
RACE, COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, PRIOR EEO ACTIVITY or
PHYSICAL or MENTAL DISABILITY with respect to hiring, firing, promotion,
compensation, or other terms, conditions, or privileges of employment.
The U.S. Air Force, National Air Intelligence Center (hereinafter
referred to as �facility�) supports and will comply with such Federal
law and will not take action against individuals because they have
exercised their rights under law.
The facility has been found to have retaliated against an employee
by taking reprisal against her for engaging in protected EEO activity.
The facility has been ordered to train the supervisors involved regarding
the requirements of the law referred to in this posting and to ensure
that officials responsible for personnel decisions and terms and
conditions of employment will abide by the requirements of all Federal
equal employment laws. The employee subjected to the retaliation is
entitled to receive proven compensatory damages.
The facility 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: _________________
29 C.F.R. Part 1614
1 During a heated conversation with complainant, RMO pointed to a
sign-out board with enough force to knock it off the wall. The board
hit complainant's arm.
2 Protected activity is that activity which either opposes a practice
made unlawful by one of the employment discrimination statutes (the
�opposition� clause); or filing a charge, testifying, assisting,
or participating in any manner in an investigation, proceeding, or
hearing under the applicable statute (the �participation� clause).
Compliance Manual (Retaliation) at 8-1.
3 This defense is not available when the harassment results in a
tangible employment action (e.g., a discharge, demotion, or undesirable
reassignment) being taken against the employee.
4 For example, depending on the evidence received by the Administrative
Judge, complainant may be entitled to compensatory damages for the
threats made prior to the filing of RMO's civil action.