01995992
02-25-2000
Sonia DaCosta, Complainant, v. Richard W. Riley, Secretary, Department of Education, Agency.
Sonia DaCosta, )
Complainant, )
)
v. ) Appeal No. 01995992
) Hearing Nos. 100-95-7551X
Richard W. Riley, ) 100-97-7065X
Secretary, ) Agency No. ED94610002
Department of Education, )
Agency. )
)
DECISION
On August 2, 1999, the complainant filed an appeal with this Commission
from the agency's failure to have her July 11, 1994 complaint investigated
by an independent investigator, consistent with remand instructions by
EEOC administrative judges on August 2, 1995, and December 1, 1997.<1>
The Commission accepts the complainant's appeal in accordance with EEOC
Order No. 960, as amended.
ISSUES PRESENTED
The issues presented in this appeal are (1) whether the record
demonstrates that the agency has complied with EEOC Regulation 29 C.F.R. �
1614.108(e); (2) whether the agency has shown good cause for its failure
to provide for the timely investigation of the complainant's complaint,
and (3) whether claim 2 of the complainant's complaint states a claim.
BACKGROUND
When the matters at issue arose, the complainant was employed as an
Equal Employment Specialist, GS-260-12, in the agency's Office of Human
Resources and Administration, Administrator for Management Services, Equal
Employment Opportunity Staff, Complaints Analysis and Conciliation Unit.
On December 30, 1992, the complainant requested a desk audit because the
agency was purportedly assigning her GS-13 duties while paying her GS-12
level wages. On March 29, 1994, the complainant received the results of
the desk audit; she contacted an EEO counselor soon thereafter. On May
22, 1994, the complainant began employment as a GS-13 Equal Employment
Specialist with another Federal agency.
On July 14, 1994, the complainant filed a formal EEO complaint wherein she
alleged that based on her national origin (Hispanic) and in retaliation
for her prior EEO activity, (1) on March 25, 1994, the agency declined to
upgrade her position and, (2) on May 4, 1994, the agency subjected her to
a hostile work environment due to the receipt of a May 2, 1994, letter
from an independent contractor. The complainant named her supervisor
and the author of the May 2, 1994 letter as the responsible individuals.
To remedy the alleged discrimination, the complainant sought payment
for the GS-13 duties she allegedly had performed from December 1, 1992
through May 21, 1994; a letter of apology, and compensatory damages.
According to the EEO Counselor's Report, the complainant alleged that her
supervisor failed to support her upgrade request when meeting with the
classifier, even though she performed all of the grade-level controlling
duties performed by Employee A, a GS-13 Equal Employment Specialist.
According to the March 25, 1994 desk audit result memorandum, the audit
did not reveal that the complainant continually performed higher graded
duties with such frequency as to affect the grade of her position. For
example, the memorandum found that the complainant's responsibility for
revising agency regulations consumed less than 20% of the complainant's
time. The memorandum indicated, however, that the complainant had been
assigned duties which appeared to have similarities to those assigned to
the GS-13 position held by Employee A, including functions related to the
intake process, the resolution of different types of complaints, sexual
harassment assignments, the provision of sexual harassment training,
investigative duties, and the writing of some procedural guidance for the
revised Part 1614 regulations. The memorandum concluded that there were
a number of position management problems relative to the classification
of the complainant's position including the apparent overlap of duties
and responsibilities and possible grade impact of individual assignments.
Of relevance to the instant appeal, the classifier indicated at page 6
of the �Evaluation Statement�:
Incumbent certifies the completeness of records and evaluates the
contractor's work. (EEO investigations are primarily performed by a
contractor.)
The record indicates that the independent contractor named in allegation
2 of the complainant's complaint had been tasked with investigating the
EEO complaint of Employee B (agency complaint number ED-9382000), filed
on September 7, 1993. The contractor's May 2, 1994 letter criticized
the investigation plan that had been prepared by the complainant.
The letter stated, among other things, that two incidents of alleged
sexual harassment had been ignored: a co-worker's walking into Employee B
and allegedly touching her private parts and another incident involving
alleged remarks by co-workers with sexual innuendo. According to the
EEO Counselor's Report, the letter was discussed at a May 4, 1994 unit
meeting where the complainant believed she was harassed by her supervisor
because she did not have a �filthy� mind.
On January 30, 1995, the complainant wrote the agency's EEO Office
requesting a hearing before an EEOC Administrative Judge. The letter
pointed out that the agency had not yet issued her an acceptance
or dismissal letter or a notice regarding the investigation of her
complaint. On February 23, 1995, the complainant informed the EEOC's
Office of Federal Operations (OFO) that the agency had not responded to
her complaint. Thereafter, OFO wrote to the agency and, in response,
the agency sent a hearing request to the EEOC's Washington Field
Office (WFO) on April 5, 1995. Therein, the agency pointed out that
because the complainant's allegations involved the EEO Office, �her
complaint is considered as a conflict of interest matter ....� The
complainant's complaint was docketed by the EEOC's WFO with hearing
number 100-95-7551X.
By letter of August 2, 1995, Administrative Judge 1 remanded the complaint
to the agency for investigation. The letter indicated that both parties
had agreed to the remand and had stipulated that the investigation would
be completed within 90 days. Administrative Judge 1 recommended that an
independent investigator be appointed due to the acknowledged conflict
of interest.
On October 27, 1995, the agency's EEO Office wrote the Government
Printing Office (GPO) as a follow-up to an October 19, 1995 conversation.
The letter indicated that the agency was seeking another Federal agency
to assume the processing of two separate conflict of interests complaints:
the complainant's complainant and the complaint of Employee C, ED-9337000.
The letter indicated that it was the agency's understanding that the
GPO might be able to handle both cases.
By letter of August 8, 1996, the agency's EEO Office notified the
complainant that it again had been contacted by EEOC's OFO regarding
her complaint. The letter indicated that it had informed the EEOC that
it was seeking another Federal agency to process her conflict of interest
complaint, and that at present the EEO Office was striving to establish
an interagency agreement by which to delegate specific EEO authority to
GPO to process the complaint.
On September 20, 1996, the complainant again requested a hearing, noting
that she had cooperated with the agency when it requested a 90-day
extension for the investigation, but that no action had yet been taken
on her complaint. The agency forwarded the second hearing request to
EEOC's WFO, where it was docketed as hearing number 100-97-7065X on
October 21, 1996. The acknowledgment letter informed the parties that
due to the large volume of cases, the matter had not yet been assigned
to an administrative judge.
On August 13, 1997, the complainant requested that Administrative Judge 2
order the agency to pay discovery costs since they had expended no money
to conduct the investigation of her complaint. Administrative Judge 2
responded to the parties that EEOC procedures did not provide for shifting
the costs during the hearing process, but that the complainant would be
entitled to such costs if she prevailed on her complaint. Administrative
Judge 2 also requested that the agency advise him of the status of the
investigative report. The agency responded that no investigative report
had been prepared because, prior to the agency's obtaining the assistance
of another agency, the complainant had requested a hearing.
On October 9, 1997, the complainant wrote Administrative Judge 2 that
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(October 22, 1992) (hereinafter referred to as EEO MD-110 (1992), Chapter
6, Section III.F. at 6-16, gave administrative judges the authority to
require the agency to pay any costs incurred by a complainant in taking
depositions or in any other form of discovery when an agency fails to
timely complete its investigation. The complainant represented that
she had not incurred any additional expenses for discovery because
Administrative Judge 2's reply of August 13, 1997 had discouraged her
from doing so. The complainant further informed Administrative Judge
2 that it seemed pointless to pursue her complaint before him because
she believed he had characterized her complaint as a �nuisance� during
the prehearing conference.
On October 20, 1997, Administrative Judge 2 wrote the parties that
he was researching the question of cost shifting and would provide
further guidance soon. He also informed the parties that the agency's
characterization of its settlement offer as a �nuisance settlement�
did not reflect his view of the merits of the complainant's complaint
allegations. Administrative Judge 2 further pointed out that the
complainant had not responded to the agency's Motion for Summary Judgment.
By letter of November 9, 1997, the complainant notified Administrative
Judge 2 and the agency that she was requesting a final agency decision
from the agency.
On December 1, 1997, Administrative Judge 2 remanded the complaint to
the agency for final agency decision per the complainant's request.
Administrative Judge 2 reminded the agency that because no investigation
had yet been undertaken, the agency was responsible for collecting
sufficient information to render a final decision. Administrative Judge 2
instructed the agency that to avoid a conflict of interest, an independent
investigator should conduct any fact finding. Administrative Judge
2 indicated that agency counsel had informed him that the agency was
entering into an interagency agreement for that purpose. Administrative
Judge 2 also advised the agency that because the complainant was a former
employee of the EEO Office, a conflict of interest would arise if the EEO
Office were to process the merits of the complaint. Administrative Judge
2 instructed the agency that, therefore, someone outside the EEO Office
should render the final agency decision.
On April 21, 1999, the agency's EEO Office notified the complainant that
an investigation would be conducted by a General Service Administration
sole source contractor. On June 9, 1999, the agency's EEO Office
notified the complainant that there would be a �short� delay in the
start of the investigation. On June 29, 1999, the agency's EEO Office
officially acknowledged the receipt of the complainant's formal complaint
and informed the complainant of her right to an investigation within 180
days of the filing of her complaint and the right to appeal any final
agency decision on her complaint. On July 29, 1999, the agency's EEO
Office sent the complainant a letter enclosing a set of interrogatories
to �expedite� the issuance of a final decision. The agency's EEO
Office requested that the complainant return her answers with a signed
and notarized certification of truthfulness within fifteen days of her
receipt of the letter.
On August 2, 1999, the complainant filed the instant appeal. The
complainant indicates that for a second time the agency has ignored
the instructions of an Administrative Judge to have the investigation
conducted by a neutral and impartial party. The complainant contends
that the manner in which the agency has engaged in delays for five years
and ignored two remands from the EEOC is tantamount to a final decision.
In support of her appeal, the complainant submits copies of correspondence
she wrote and received in her repeated attempts to have the agency process
her complaint in accordance with the requirements of 29 C.F.R. Part 1614.
For example, on August 23, 1996, the complainant wrote to her Senator and
expressed her concern that many of her witnesses had already left the
EEO Office and that the supervisor who allegedly discriminated against
her planned to retire that year.
In response to the complainant's appeal, the agency argues that it
has not ignored the EEOC's guidance, and that the record documents its
efforts to have the complainant's complaint investigated by a neutral and
impartial party. Specifically, the agency argues that since 1995, it has
attempted to have another agency investigate the complainant's complaint.
In support of its representation, the agency relies on a description
of its efforts in 1996 and 1997 to effect an interagency agreement to
process the complainant's complaint. The description indicates, among
other things, that the agency's EEO Office received a sample interagency
agreement from the EEOC's OFO on June 24, 1996, and again on February
28, 1997. The agency describes the process of drafting the interagency
agreement as a �tedious and long process.� The agency also contends
that the agency can now investigate the complainant's complaint because
a conflict of interest no longer exists. The agency argues that the
individuals named in the complainant's complaint are no longer employed
in the agency's EEO Office and that a new Director has been appointed.
The agency requests that the Commission find that a conflict of interest
no longer exists and that the complainant be ordered to respond to the
interrogatories it sent her.
On November 23, 1999, the Commission's OFO issued to the parties
a �Notice to Show Good Cause Why Sanctions Should Not Be Imposed.�
The Notice described the agency's duty to investigate complaints of
discrimination in accordance with 29 C.F.R. � 1614.108(e), referenced
the two prior Commission remands of the complainant's complaint to the
agency for investigation, and set forth the Commission's authority to
order sanctions. The Notice ordered the agency to show good cause why
the Commission should not sanction the agency for its failure to comply
with EEOC Regulation 29 C.F.R. � 1614.108(e) by issuing a decision on the
complaint that is fully or partially in favor of the complainant; and/or
by taking such other actions as the Commission may deem appropriate.
The agency filed a timely response to the Notice wherein it reiterates
prior factual representations and contends that it has attempted to
investigate the complainant's complaint in good faith, consistent with
the instructions of the administrative judges. The agency also contends
that it should not be sanctioned because it has not acted in bad faith,
because it attempted to negotiate an interagency agreement to have the
complaint investigated; the agency currently seeks to investigate the
complaint; and no conflict of interest now exists that would prevent the
agency from conducting a �supplemental� investigation. To support its
contentions, the agency submits copies of documents already in the record
and a declaration made �under penalty of oath� by the Complaints Team
Leader of the agency's Equal Opportunity Group. The declarant indicates,
without explanation, that an interagency agreement could not be effected.
The declarant also represents that the complainant's former supervisor
and one of the employees who attended the May 4, 1994 unit meeting no
longer work for the agency. The declarant further opines that a conflict
of interest does not currently exist since the current EEO reviewers were
not agency employees when the alleged discriminatory actions took place.
ANALYSIS AND FINDINGS
Violation of EEOC's Part 1614 Regulation
EEOC Regulation 29 C.F.R. � 1614.108(e) requires agencies to complete
an investigation of a formal EEO complaint within 180 days of the
filing of the complaint unless the parties agree in writing to extend
the period for not more than an additional 90 days. The complainant
did not agree to an extension during the regulatory 180 day period;
therefore the agency was required to complete the investigation of
the complainant's complaint on or before January 10, 1995. The record
demonstrates, and the agency does not dispute, that no investigation
was ever begun, much less completed, within the 180-day period.
Despite the complainant's continuous and diligent efforts to have her
complaint properly investigated, it was not until July 29, 1999, more
than five years after the filing of the complainant's complaint, that
the agency's EEO Office sent the complainant a set of interrogatories to
answer and it did so in a clear disregard of an Administrative Judge's
latest instructions. Accordingly, the Commission finds that the agency
failed to conduct a timely investigation of the complainant's complaint
as required by EEOC Regulation 29 C.F.R. Part 1614 and the Administrative
Judge 's instructions.
Imposition of Sanctions
The Commission has the inherent power to protect its administrative
process from abuse by either party. Buren v. Unites States Postal
Service, EEOC Request No. 05850299 (November 18, 1988). The procedures
contained in the Commission's Regulations are no more or no less than
the necessary means to eliminate unlawful employment discrimination in
Federal employment. Id. Therefore, the Commission must insure that
agencies, as well as complainants, abide by its regulations.
The Commission has exercised its inherent authority to enforce its Part
1614 Regulations by ordering sanctions in response to various violations.
See, e.g., Epstein v. Department of Health and Human Services, EEOC
Request No. 05970671 (July 2, 1998) (upholding an award of attorney's
fees and costs incurred in establishing a breach of a settlement agreement
where the agency's attorney misrepresented her authority to enter into a
specific agreement); Terrell v. Department of Health and Human Services,
EEOC Request No. 04950018 (November 7, 1996) (awarding attorney's fees
and costs for filing a petition for enforcement following the agency's
failure to comply with the Commission's order to conduct a supplemental
investigation within 90 days); Edwards v. United States Postal Service,
EEOC Request No. 05950708 (October 31, 1996) (Commission has the authority
to remedy a violation of 29 C.F.R. � 1614.605(b)(2) by awarding official
time without a finding of discrimination); and Stull v. Department of
Justice, EEOC Appeal No. 01942827 (June 15, 1995) (upholding an award
of attorney's fees and costs incurred in an attempt to have an adverse
inference drawn where the agency failed to comply with an administrative
judge's order to produce documents).
In addition to the Commission's inherent authority to enforce its Part
1614 Regulations, EEOC Regulation 29 C.F.R. � 1614.108(c)(3) authorizes
administrative judges and the Commission on appeal to take one of four
specified actions, or any such other actions deemed appropriate, where
an agency or its employees fails without good cause shown to respond
fully and in timely fashion to an investigator's requests for documents,
records, comparative data, statistics, affidavits, or the attendance
of witnesses. EEOC Regulation 29 C.F.R. � 1614.109(d)(3) provides
sanctions for a party's failure to respond fully and timely to requests
for evidence in the hearing context. 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.404(c))
provides sanctions for a party's failure to respond to the Commission's
requests for the submission of evidence following an appeal.
The Commission finds in the instant case that the agency has successfully
prevented an independent investigator from making evidentiary requests
by failing to assign the matter to an independent investigator as
required by EEOC Regulation 29 C.F.R. � 1614.102(a)(2).<2> However, the
agency's inaction does not nullify the Commission's inherent authority
to sanction the agency's failure to fulfill its duty to investigate, or
to otherwise provide for the prompt, fair, and impartial investigation
of the complainant's complaint, within 180 days of the date she filed
the complaint.
The agency contends that the record documents its attempts to have the
complainant's complaint investigated by a neutral and impartial party.
However, the agency has not provided any documentation or explanation
for its failure to investigate the complainant's complaint within 180
days of its filing, that is, on or before January 10, 1995. In fact,
the only agency attempts to initiate an investigation occurred in October
1995 and in 1996 and 1997, months and years after the time limitation
for completing the investigation had expired. The agency was never
ignorant of its responsibility to have the complaint investigated, but
it merely initiated attempts to do so, and all the ineffective attempts
were by the same office which allegedly had engaged in discrimination.
The agency's conduct is precisely the reason the EEOC expects this type
of complaint to be investigated by neutral third parties.
Given the agency's failure to investigate the complainant's complaint
within 180 days as required by Regulation, and the agency's failure to
provide any explanation for its non-compliance, the Commission finds
that the imposition of a sanction is warranted in this case.
Choice of an Appropriate Sanction
In determining the nature of the sanction to be imposed, the Commission
has considered the agency's contention that it did not ignore the EEOC's
guidance and instructions that the complainant's complaint should be
investigated by a neutral and impartial party. During the time period
in question, July 14, 1994 through January 10, 1995, the agency should
have been guided by MD-110 (1992), Chapter 5, Section V.C.1 and 2 at
5-5 which provided in pertinent part:
The person assigned to investigate shall not occupy a position in the
agency that is directly or indirectly under the jurisdiction of the head
of that part of the agency in which the complaint arose.
The investigator, if a contract investigator, shall not have been
hired by or be obligated to the person(s) involved in the matter(s)
giving rise to the complaint. For example, where the contract monitor
of EEO investigation contracts is alleged to have been involved in
discriminatory activity, the use of the usual contract investigator
would create an apparent bias because there is at best the appearance
that the contract investigator could not be impartial.
Based on this Commission guidance, the person assigned to investigate
the complainant's complaint could not have occupied a position in
the agency that was directly or indirectly under the jurisdiction
of the head of that part of the agency in which the complaint arose.
It appears from the audit �Evaluation Statement� that this guidance
should have presented no difficulty for the agency because the agency's
EEO investigations were primarily performed by independent contractors.
Yet, there is no indication in the record that the agency even considered
using a contract investigator to investigate the complainant's complaint
prior to 1999 when, on April 21, 1999, the agency's EEO Office notified
the complainant that an investigation would be conducted by a sole source
contractor. In addition, to the extent that the agency was concerned
with the potential for a conflict of interest to occur if the agency's
EEO Office monitored the contract investigator for the complainant's
complaint, the responsibility for contract management and award could
have been transferred to another part of the agency with experience in
contract management and awards.
The Commission finds that the agency did not follow the guidance
set forth in MD-110 (1992), as described above, but instead, allowed
the agency's EEO Office with an acknowledged conflict of interest to
retain responsibility for the processing of the complainant's complaint.
The results are evident: (1) a period of inactivity from July 14, 1994
to April 5, 1995; (2) followed after the August 2, 1995 Remand Order, by
what the agency describes as the �tedious and long process� of drafting
an interagency agreement; (3) followed by another period of inactivity
from December 1, 1997 to April 21, 1999. The agency acknowledges that it
has not executed an interagency agreement. There also is no evidence in
the record that the agency made any additional efforts to do so following
Administrative Judge 2's remand Order of December 1, 1997.
The agency requests the Commission to find that a conflict of interest
no longer exists, and to order the complainant to respond to the
interrogatories it sent her. These requests assume that an agency
has an option under 29 C.F.R. Part 1614 to delay the investigation of
a complaint until a potential conflict of interest is resolved through
resignation, retirement, or death. No such option exists under Part 1614.
Moreover, such an option would defeat the purpose of the Regulation, i.e.,
to eliminate unlawful employment discrimination in Federal employment.
The Commission observes that in such a situation the agency would be
able to argue, as the agency successfully did in Davis v. Department
of Education, EEOC Request No. 05950147 (August 1, 1996), that when a
witness no longer works for the agency and fails to appear at a hearing,
the failure to attend can not be deemed to be a refusal by the agency to
submit evidence. Indeed, the agency has informed the Commission that
the supervisor who allegedly discriminated and retaliated against the
complainant in this case now no longer works for the agency.
Finally, the agency contends that the agency should not be sanctioned
because the agency has not acted in bad faith. The legal issue
to be resolved is not whether the agency acted in bad faith, but
rather, whether the agency has shown good cause for its failure to
have the complainant's complaint timely investigated by an impartial
investigator as required by EEOC Regulation 29 C.F.R. � 1614.102(a)(2),
and � 1614.108(e). See Jackman v. Housing and Urban Development,
EEOC Request No. 05970011 (January 16, 1998); Stull, supra; and 29
C.F.R. � 1614.109(d)(3), and � 1614.404(c). The bad faith standard was
applicable under the Commission's prior Regulation, 29 C.F.R. Part 1613,
as set forth in 29 C.F.R. � 1613.218(e).
The Commission finds that the agency has not shown any reason, much less
than good cause, for its failure to comply with either the Administrative
Judges' instructions or EEOC Regulation 29 C.F.R. � 1614.102(a)(2), and
� 1614.108(e) in this case. However, even under the bad faith standard
advocated by the agency, the agency's actions speak for themselves.
The agency had an opportunity and the responsibility to investigate the
complainant's complaint in 1994, but it failed to do so. On August 2,
1995, Administrative Judge 1 remanded the complaint to the agency based
on a stipulation by the agency that the investigation would be completed
within ninety (90) days. No investigation was conducted during the
ninety-day period. The complainant expressed concern to her Senator in
1996, that many of her witnesses had already left the EEO Office and that
the supervisor who allegedly discriminated against her planned to retire
that year. Nevertheless, no investigation was conducted. On December
1, 1997, Administrative Judge 2 remanded the complaint to the agency for
investigation by an independent investigator and the issuance of a final
agency decision in response to the complainant's request. The agency was
required by EEOC Regulation 29 C.F.R. � 1614.110 to issue a final decision
within 60 days of the complainant's request. Again, no investigation
was conducted following the remand. The agency waited more than sixteen
months to notify the complainant that an investigation would be conducted
by a sole source contractor. Again, no such investigation was conducted.
On July 29, 1999, the agency, not the required independent contractor,
sent the complainant a set of interrogatories to �expedite� the issuance
of a final agency decision on her complaint. However, to this day the
record does not contain any indication that the agency has requested an
affidavit or answers to interrogatories from the supervisor or from any
other employees who had personal knowledge of the duties the complainant
and the comparative employee, Employee A, performed from December 1992
through May 21, 1994, and the percentage of time they each spent on GS-13
level duties. The Commission can only conclude from the agency's course
of conduct in this case that the agency's EEO Office negligently and
intentionally delayed the investigation of the complainant's complaint
because a timely investigation by an independent investigator would
have shown that the agency discriminated against the complainant based
on her national origin and in retaliation for her prior EEO activity.
The agency's feeble attempts to explain its dilatory behavior can not
reasonably justify its inability to have the complaint fully investigated
years earlier, as prescribed by the regulations and as instructed by
EEOC's officials.
Given the circumstances present in this case, the Commission finds
that the appropriate sanction for the agency's failure to process the
complainant's complaint in accordance with the Commission's Part 1614
Regulation is to issue a decision partially in favor of the complainant.
See 29 C.F.R. � 1614.108(c)(3)(i). Specifically, the Commission finds
that a timely and impartial investigation would have shown that the agency
required the complainant to perform the work of a GS-13 Equal Employment
Specialist for GS-12 pay from December 1, 1992 through May 21, 1994,
while paying the comparative employee GS-13 level pay for the performance
of similar duties, because of her national origin and in retaliation for
her prior EEO activity. To remedy the discrimination, the Commission
orders the agency to award the complainant the additional back pay,
interest on back pay, and benefits she would have received during that
period of time if the agency had not discriminated and retaliated against
her. The Commission also orders the agency to conduct a supplemental
investigation to determine whether the complainant is entitled to the
compensatory damages which she requested in her complaint. The agency
shall afford the complainant on remand an opportunity to establish a
causal relationship between the payment of GS-12 wages for GS-13 work
and any pecuniary or non-pecuniary losses. See West v. Gibson, 119
S. Ct. 1906 (1999).
The Commission issues a decision partially, but not totally, in favor
of the complainant only because the Commission finds, for the reasons
set forth below, that allegation 2 of the complainant's complaint fails
to state a claim under Part 1614.
Allegation 2
Where an alleged claim does not challenge an agency action or inaction
regarding hiring, termination, compensation or any other specific term,
condition, or privilege of employment, the alleged claim may still state
a claim under Part 1614 if the complaint allegations are sufficient
to state a hostile or abusive environment claim. Cobb v. Department
of the Treasury, EEOC Request No. 05970077 (March 13, 1997), citing
Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993) (harassment
is actionable if it is sufficiently severe or pervasive to alter the
conditions of the complainant's employment).
The Commission finds that even if proven true, the facts alleged
regarding the May 2, 1994 letter and the May 4, 1994 meeting do not
indicate that the complainant may have been subjected to harassment
that was sufficiently severe or pervasive to alter the conditions of
her employment. Accordingly, the Commission finds that the complainant's
complaint does not state a claim under 29 C.F.R. Part 1614. See Phillips
v. Department of Veterans Affairs, EEOC Request No. 05960030 (July
12, 1996) (allegations that the supervisor had "verbally attacked"
the complainant on one occasion, attempted to charge him with AWOL,
and disagreed with the time the complainant entered into a sign-in log,
were insufficient to state a harassment claim); Backo v. United States
Postal Service, EEOC Request No. 05960227 (June 10, 1996) (a supervisor's
remarks on several occasions, unaccompanied by any concrete action, were
not sufficient to state a claim); and Miller v. United States Postal
Service, EEOC Request No. 05941016 (June 2, 1995) (an oral admonishment
was not sufficient to state a hostile work environment claim).
CONCLUSION
For the reasons stated above, the Commission finds that allegation 2 of
the complainant's complaint fails to state a claim under 29 C.F.R. Part
1614. The Commission finds that the agency failed to comply with
EEOC Regulation 29 C.F.R. � 1614.108(e) without good cause shown.
The Commission sanctions the agency's violation of its Regulation
and instructions by finding that the agency discriminated against the
complainant based on her national origin and in retaliation for her
prior EEO activity when it required her to perform the work of a GS-13
Equal Employment Specialist for GS-12 pay from December 1, 1992 through
May 21, 1994. The Commission orders the agency to fully remedy the
discrimination in accordance with the Order below, and to demonstrate
that it has taken steps to insure that the agency's failure to investigate
a complaint involving the agency's EEO Office does not recur.
ORDER
The agency is ORDERED to take the following remedial action:
The agency has been found to have discriminated against the complainant
based on her national origin and in retaliation for her prior EEO activity
when it required her to perform the work of a GS-13 Equal Employment
Specialist for GS-12 pay from December 1, 1992 through May 21, 1994.
The agency shall determine the appropriate amount of back pay with
interest and other benefits due complainant, pursuant to 29 C.F.R. �
1614.501, no later than sixty (60) calendar days after the date this
decision becomes final. The complainant shall cooperate in the agency's
efforts to compute the amount of back pay and benefits due, and shall
provide all relevant information requested by the agency. If there
is a dispute regarding the exact amount of back pay and/or benefits,
the agency shall issue a check to the complainant for the undisputed
amount within sixty (60) calendar days of the date the agency determines
the amount it believes to be due. The complainant may petition for
enforcement or clarification of the amount in dispute. The petition for
clarification or enforcement must be filed with the Compliance Officer,
at the address referenced in the statement entitled "Implementation of
the Commission's Decision."
The agency shall conduct a supplemental investigation on the issue of
complainant's entitlement to compensatory damages and shall afford her
an opportunity to establish a causal relationship between the payment
of GS-12 wages for GS-13 level work and any pecuniary or non-pecuniary
losses that the complainant can prove. The complainant shall cooperate
in the agency's efforts to compute the amount of compensatory damages,
and shall provide all relevant information requested by the agency.
The agency shall issue a final decision on the issue of compensatory
damages. 64 Fed. Reg 37,644, 37,657-58 (1999) (to be codified and
hereinafter referred to as 29 C.F.R. � 1614.110). The supplemental
investigation and issuance of the final decision with appropriate
appeal rights shall be completed within ninety (90) calendar days of the
date this decision becomes final. A copy of the final decision must be
submitted to the Compliance Officer, as referenced below. The agency
is put on notice that any unjustifiable delay in issuing this decision
will add interest to any amount the Commission finds the complainant is
entitled to in compensatory damages.
Within ninety (90) calendar days of the date this decision becomes final,
the agency shall submit to the Compliance Officer evidence that it has
in place a procedure whereby complaints alleging unlawful discrimination
by the agency's EEO Office (or its employees) are processed outside the
agency's EEO Office. The evidence shall describe the procedure and the
mechanism by which the agency insures that the procedure is followed by
the agency's EEO Office, including a description of penalties that the
agency will impose for failure to comply with the mandatory procedure.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's calculation of backpay and other benefits due complainant and
evidence that all corrective action has been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Headquarters facility copies of
the attached notice. Copies of the notice, after being signed by the
agency's duly authorized representative, shall be posted by the agency
within thirty (30) calendar days of the date this decision becomes final,
and shall remain posted for sixty (60) consecutive days, in conspicuous
places, including all places where notices to employees are customarily
posted. The agency shall take reasonable steps to ensure that said
notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
ATTORNEY'S FEES (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to
an award of reasonable attorney's fees incurred in the processing of the
complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall
be paid by the agency. The attorney shall submit a verified statement of
fees to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to the
complainant. If the agency does not comply with the Commission's order,
the complainant may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). The complainant also has the right to file a
civil action to enforce compliance with the Commission's order prior
to or following an administrative petition for enforcement. See 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �
1614.503(g). Alternatively, the complainant has the right to file a
civil action on the underlying complaint in accordance with the paragraph
below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407
and 1614.408. A civil action for enforcement or a civil action on the
underlying complaint is subject to the deadline stated in 42 U.S.C. �
2000e-16(c)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, MUST BE FILED
WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR
DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS
OF RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. In the
absence of a legible postmark, the request to reconsider shall be deemed
timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.604).
The request or opposition must also include proof of service on the
other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION
(R1199)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, YOU MUST NAME AS THE DEFENDANT IN
THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD OR DEPARTMENT
HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND OFFICIAL TITLE.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
February 25, 2000
____________ ______________________________
Date Frances M. Hart
Executive Officer
Executive Secretariat
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
DATE
Equal
Employment
Assistant
Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated ___________ which found that
a violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq., has occurred at this facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of that person's RACE, COLOR,
RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL DISABILITY
with respect to hiring, firing, promotion, compensation, or other terms,
conditions, or privileges of employment.
The Department of Education's Headquarters in Washington, D. C., supports
and will comply with such Federal law and will not take action against
individuals because they have exercised their rights under law.
The Department of Education's Headquarters has been found to have violated
Title VII when it discriminated against an employee based on her national
origin and in retaliation for her prior EEO activity by requiring her
to perform GS-13 Equal Employment Specialist duties for GS-12 pay from
December 1, 1992 through May 21, 1994. The Department of Education's
Headquarters has been ordered to take corrective action in the form
of an award of back pay with interest and benefits to the individual,
and payment to her for any reasonable attorney's fees incurred in the
processing of her complaint and any compensatory damages for which she
proves entitlement. In addition, the agency must submit evidence to the
Commission that it has established and implemented a procedure whereby
EEO complaints that allege unlawful discrimination by the agency's EEO
Office or its employees are processed outside that office.
The Department of Education's Headquarters will not in any manner
restrain, interfere, coerce, or retaliate against any individual who
exercises his or her right to oppose practices made unlawful by, or
who participates in proceedings pursuant to, Federal equal employment
opportunity law.
Date Posted: ____________ _________________________
Posting Expires: __________ _________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2EEOC Regulation 29 C.F.R. � 1614.102(a)(2) requires that agencies shall
provide for the �prompt, fair and impartial� processing of complaints
in accordance with Part 1614 and the instructions contained in the
Commissions's Management Directives.