01974476
11-24-1998
Frederick Cornell, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Frederick Cornell v. Department of Veterans Affairs
01974476
November 24, 1998
Frederick Cornell, )
Appellant, )
) Appeal No. 01974476
v. ) Agency No. 96-1057
) Hearing No. 160-97-8202X<1>
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the basis of physical disability (Multiple
Sclerosis), in violation of the Rehabilitation Act of 1973, as amended,
29 U.S.C. � 791, et seq. Appellant alleges he was discriminated against
when: (1) he did not receive an upgrade to a Wage Grade Three Food Service
Worker until July of 1995, when his co-workers were upgraded between
December 25, 1994, and March 1, 1995; (2) he did not receive an upgrade
to Wage Grade Four Cook between December 25, 1994 and March 1, 1995;
(3) he did not receive a monetary award while other Food Service Workers
and Cooks received upgrades and awards during the period December 25,
1994, through April of 1995; (4) he was counseled on September 7, 1995,
for being absent without leave on May 10, 1995, and June 28, 1995; and
(5) he was placed on medical certification status on September 7, 1995,
and required to bring in a doctor's note within five days of each day he
was off sick from work. The appeal is accepted in accordance with EEOC
Order No. 960.001. For the following reasons, the agency's decision is
REVERSED and REMANDED.
The record reveals that during the relevant time, appellant was employed
as a WG-051140-03 Food Service Worker at the agency's Medical Center in
Northampton, Massachusetts. Following the above-referenced incidents,
and believing he was a victim of discrimination, appellant sought EEO
counseling and, subsequently, filed a formal EEO complaint on December
5, 1996. Between December of 1995 and August of 1996, appellant and the
agency engaged in a series of correspondence in an attempt to clarify
the allegations in appellant's complaint. However, as of August, 1996,
appellant's complaint had neither been accepted, rejected nor investigated
by the agency. Consequently, pursuant to 29 C.F.R. � 1614.108(f),
appellant requested a hearing before an EEOC Administrative Judge (AJ).
Upon receipt of the complaint file, the AJ issued a discovery ORDER,
dated October 9, 1996, which required the agency: (1) to inform appellant
what issues were accepted and/or rejected no later than October 25, 1996;
and (2) to develop a complete and impartial factual record, pursuant to
29 C.F.R. � 1614.108(b), and provide a copy of such record to appellant
and the AJ no later than December 27, 1996. The AJ noted that failure
to comply with the ORDER may result in an adverse inference, i.e.,
sanctions, against the agency.
On October 17, 1996, the agency issued a letter of partial acceptance
and partial rejection, accepting for investigation the five issues as
set forth herein, and rejecting a sixth issue raised in the complaint
concerning an alleged inequitable rotation of duties. Appellant did
not appeal the rejection of the sixth issue. The agency, however,
failed to complete an investigation and develop a factual record by
December 27, 1996. The agency's investigator informed the agency that
due to the "holiday season," the investigation would not be completed
until mid-January, 1997. The agency notified appellant of this delay,
and appellant responded in a letter dated December 17, 1996, that such a
delay would violate the AJ's ORDER, and that he would not acquiesce in any
further delay of the investigation of his complaint. The investigator,
apparently unaware of the ORDER, asked the agency how to proceed given
the existence of the ORDER. The agency told the investigator to proceed
with the revised timetable, and neither the agency nor the investigator
informed the AJ of any planned delay in completing the investigation.
The agency completed the investigation and submitted the investigative
file to the AJ on January 27, 1996. That day, appellant filed a motion
for sanctions, and the agency filed a motion in opposition of appellant's
motion for sanctions on January 30, 1996.
In its motion opposing sanctions, the agency argued, among other things,
that a one-month delay in completing its investigation did not warrant
sanctions where appellant did not respond to a letter it had sent
informing him of the delay in completing the investigation, and further,
that appellant's refusal to cooperate with the investigator resulted in
the completion of the investigative report without any testimonial or
documentary evidence from appellant. Finally, the agency argued that
because it granted appellant an extension during the first quarter of
1996, to provide additional information to assist the agency in processing
his complaint, the agency, under principles of equity, should be permitted
a one-month extension to complete its investigation.
On February 18, 1996, the AJ issued a Recommended Decision (RD) fully in
favor of appellant, pursuant to 29 C.F.R. � 1614.109(d)(3)(iv), respecting
all the issues in appellant's EEO complaint. First, the AJ found that
the agency had failed to develop a complete factual record within 180
days of the day the complaint was filed, as required by the Commission's
Regulations at 29 C.F.R. � 1614.108(e). The AJ also found "incredible"
the agency's argument that appellant did not respond to its notice
of a delay in the investigation, when the record clearly demonstrated
that counsel for appellant sent the agency a letter, dated December 17,
1995, indicating that appellant "neither assents to nor acquiesces in
an extension for the completion of the investigation." The AJ further
found that the agency failed to notify her of the delay in completing
the investigation, and "sua sponte, established its own deadline,..."
in contravention of the AJ's ORDER. The AJ noted that any alleged
non-cooperation by appellant was insufficient to justify its delay in
completing the investigation in a timely manner, and further, that the
agency therefore failed to show good cause, as required by 29 C.F.R. �
1614.109(d)(3), for its untimely submission of the investigative report.
The AJ also noted that the agency's submission of the investigative
file was not merely one month late, but over one year late, and was
only submitted after being so ORDERED by the AJ. Accordingly, the AJ
rejected the agency's equity argument. The AJ ORDERED full remedial
relief for appellant.
In its FAD, the agency rejected the AJ's imposition of a finding of
discrimination. The agency concluded that the AJ did not have the
authority to issue the sanction that she did because such authority is
limited to discovery matters, and the completion of an investigative
report is a "ministerial" function, which is outside the scope of
discovery. The FAD found that adverse inferences are typically drawn
when an agency fails to provide a witness or a document in its control,
and in this case, there was no "discovery order" for any documents in the
agency's control. The FAD noted that under 29 C.F.R. � 1614.109(d)(3),
an AJ may draw an adverse inference that the requested evidence would have
reflected unfavorably on the party failing to comply with the request.
The FAD argued that the facts here were similar to those in Terrell
v. Health and Human Services, EEOC Petition No. 04950018 (November 7,
1996), wherein the Commission denied a petition for enforcement, despite
the agency's untimely completion of a supplemental investigation, where
even though untimely, the supplemental investigation was completed. The
FAD opined that like Terrell, the agency did complete the investigation,
albeit untimely, and that an adverse inference was therefore improper.
The FAD also noted that the delay in completing the investigation was
attributable to "administrative oversight" and that while it was debatable
whether such an explanation established "good cause shown," it did not
demonstrate "bad faith" by the agency. Finally, the FAD argued that the
AJ failed to demonstrate how appellant was "substantially prejudiced" by
a one-month delay in the completion of the investigation, and accordingly,
denied the relief imposed by the AJ.<2> On appeal, appellant essentially
contends that the AJ properly applied the Commission's rule on sanctions
in this case, and her RD should therefore be reinstated. The agency
stands on the record and requests that the Commission affirm its FAD.
After a careful review of the record, the Commission finds that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. In reaching this conclusion, we
note that EEOC Regulations provide AJ's with broad discretion in the
conduct of a hearing, including such matters as discovery orders and the
drawing of adverse inferences and other sanctions. See e.g., Ortega
v. United States Postal Service, EEOC Appeal No. 01956818 (February
5, 1998); Malley v. Department of the Navy, EEOC Appeal No. 01951503
(May 22, 1997).<3> Contrary to the FAD's conclusion, the agency not
only failed to comply with the Commission's Regulations at 29 C.F.R. �
1614.108(e), but also failed to comply with a discovery ORDER to complete
an investigation of appellant's complaint allegations in a timely manner.
Also contrary to the FAD's conclusion, an AJ may, pursuant to 29 C.F.R. �
1614.109(d)(3)(iv), "[i]ssue a decision fully or partially in favor of
the opposing party;..." The facts in Terrell, supra are distinguishable
because the issues in Terrell involved a Petition for Enforcement, which
the Commission determined was not required when, albeit untimely, the
agency did complete that which it was ordered to do. Issuing a Petition
for Enforcement was, therefore, unnecessary in Terrell. Here, however,
EEOC Regulations at 29 C.F.R. � 1614.109 and the EEOC Management Directive
(MD-110) at page 6-7, both provide that absent good cause shown, an AJ has
the broad discretion to issue sanctions as stated above.<4> Furthermore,
and contrary to the FAD, no showing that appellant was "substantially
prejudiced" or that the agency exhibited "bad faith" is required
under the language of the EEOC Regulations at 29 C.F.R. � 1614.109,
as a prerequisite to the imposition of sanctions, though such a showing
may be a factor an AJ considers when determining the appropriateness of
sanctions under the above-referenced Regulations.<5> After an independent
review of the evidence, the Commission finds that the AJ did not abuse
her discretion in issuing a decision favorable to appellant as a sanction
against the agency for its dilatory investigation and discovery practices.
Therefore, after a careful review of the record, including arguments
and evidence not specifically discussed in this decision, the Commission
REVERSES the FAD and REMANDS the matter to the agency to take remedial
actions in accordance with this decision and the Order below.
ORDER (D1092)
The agency is ORDERED to take the following remedial action:
1. The agency shall retroactively correct applicable paperwork in
appellant's official personnel file to reflect a promotion to the Wage
Grade three Food Service Worker, effective March 29, 1995, and any
subsequent promotion to a Wage Grade four Cook position occurring as
a result of a position reclassification of the Wage Grade Three Food
Service Worker position.<6> The agency shall provide appellant with
back pay, and all other benefits due him, including applicable cost of
living increases, within grade increases and applicable adjustments to
retirement, pension or disability benefits.
The agency shall determine the appropriate amount of back pay (with
interest, if applicable) and other benefits due appellant, pursuant to
29 C.F.R. � 1614.501, no later than sixty (60) calendar days after the
date this decision becomes final. The appellant 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 appellant for the
undisputed amount within sixty (60) calendar days of the date the
agency determines the amount it believes to be due. The appellant may
petition for enforcement or clarification of the amount in dispute.
The petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
"Implementation of the Commission's Decision."
2. The agency shall provide appellant any monetary award (including
applicable interest) he was eligible for, and did not receive, during
the period December 25, 1994, through April of 1995.
3. The agency shall expunge and destroy, from appellant's official
personnel file, any written records of verbal or written counseling
occurring on September 7, 1995, concerning absences without leave
occurring on May 10, 1995, and June 10, 1995. The agency shall also
reimburse appellant (including applicable interest) for any leave charged
as AWOL on May 10, 1995, and June 28, 1995.
4. The agency shall expunge and destroy, from appellant's official
personnel and medical file, any written records concerning a September 7,
1995, medical certification requirement.
5. The agency is directed to conduct a minimum of sixteen (16) hours
of training for applicable supervisory, management, and EEO personnel,
as specifically listed in the AJ's RD at page 9, paragraph 5, concerning
these employees' responsibilities with respect to eliminating disability,
and all other forms of discrimination in the workplace, as well as the
proper procedures for the investigation and resolution of EEO complaints
under the Commission's Regulations at part 1614.
6. The agency shall conduct a supplemental investigation on the issue
of appellant's entitlement to compensatory damages and shall afford
appellant an opportunity to establish a causal relationship between
the incident of discrimination and any pecuniary or non-pecuniary
losses. See Carle v. Department of the Navy, EEOC Appeal No 01922369
(January 5, 1993).<7> The appellant 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. 29 C.F.R. � 1614.110.
The supplemental investigation and issuance of the final decision shall
be completed within one hundred and twenty (120) 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;
7. 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 back pay and other benefits due appellant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Northampton, Massachusetts medical
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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant.
If the agency does not comply with the Commission's order, the appellant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The appellant 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. �� 1614.408,
1614.409, and 1614.503(g). Alternatively, the appellant 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. ��
1614.408 and 1614.409. 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 appellant files a civil
action, the administrative processing of the complaint, including any
petition for enforcement, will be terminated. See 29 C.F.R. � 1614.410.
ATTORNEY'S FEES (H1092)
If appellant 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
Nov 24, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated __________ which found that a
violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �
791, et seq. has occurred at the Northampton, Massachusetts medical
facility (hereinafter "facility").
Federal law requires that there be no discrimination against any
employee or applicant for employment because of the 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 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 was found to have unlawfully discriminated against
the individual affected by the Commission's findings on the basis
of physical disability. The facility shall therefore remedy the
discrimination by retroactively promoting the affected individual,
providing the monetary award due him, providing back pay from the
effective date of the promotions, and providing proven compensatory
damages and other benefits. The facility will remove applicable
counseling memos for absences without leave or requests for medical
certification, and reimburse him for applicable leave taken as a result
of the discrimination. The facility shall also provide training to
relevant officials on equal employment opportunity law in the federal
workplace. The facility will ensure that officials responsible for
personnel decisions and terms and conditions of employment will abide
by the requirements of all Federal equal employment opportunity laws.
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 The Commission notes this complaint was previously assigned, and some
documents refer to, Agency No. 96-2107 and EEOC No. 160-96-8686X.
2 We note that the FAD reached its conclusion without conducting any
analysis or issuing any finding on the merits of appellant's allegations.
We need not address the agency's failure to address the merits of
appellant's complaint because the Commission's decision herein will
reinstate the AJ's RD in whole.
3 In Ortega v. United States Postal Service, EEOC Appeal No. 01956818
(February 5, 1998), we affirmed the AJ's decision to draw an adverse
inference under 29 C.F.R. � 1614.109(d)(3)(iv) after the AJ concluded that
the agency failed to show good cause for its dilatory discovery practices.
However, in Ortega, we remanded the case for a hearing rather than issue
a finding of discrimination under 29 C.F.R. � 1614.109(d)(3)(iv). Ortega
can be distinguished from the instant case because the AJ in Ortega wanted
to, but believed he was unable to, impose attorney's fees as a sanction.
The Commission opined that had the AJ been aware of the Commission's
decision in Stull v. Department of Justice, EEOC Appeal No. 01941582 (June
15, 1995)(permitting attorney's fees as a sanction even if appellant is
unsuccessful on the ultimate issue of discrimination), the AJ, instead
of drawing an adverse inference and finding discrimination in order to
award attorney's fees, would have imposed attorney's fees outright.
It was on this basis that the Commission remanded the complaint in
Ortega for a hearing. In the instant case, there is no showing that
the AJ wished to impose any other sanction than that which she imposed.
4 The Commission recognizes that in some of its previous decisions, it
has stated that: "[w]here the Commission has before it a sufficiently
complete record upon which to make a full evaluation of appellant's
complaint,... application of an adverse inference is inappropriate. See,
e.g., Johnson v. United States Postal Service, EEOC Request No. 05931133
(July 27, 1995); Durrette v. Veterans Administration, EEOC Request
No. 05910353 (July 29, 1991). We note, however, that the rationale in the
above referenced cases was applied to situations involving a failure to
produce evidence. The facts herein, however, are distinguishable because
in this case, the AJ exercised her discretion, as set forth in 29 C.F.R. �
1614.109(d)(3)(iv), to issue a decision fully in favor of [appellant]
as a sanction against the agency for its earlier dilatory investigatory
practices and blatant disregard of her subsequent discovery order.
5 The Commission notes that the term "bad faith" is derived from its
previous Regulations at 29 C.F.R. � 1613.218(e), and this term no longer
appears in the applicable section at 29 C.F.R. � 1614.109(d)(3).
6 We note that the record reflects that appellant has elected disability
retirement, and actual placement in these positions is therefore not
required as a remedy.
7 In Jackson v. United States Postal Service, EEOC Appeal No. 01923399
(November 12, 1992); request for reconsideration denied, EEOC Request
No. 05930306 (February 1, 1993), the Commission held that Congress
afforded it the authority to award such damages in the administrative
process. It based this assessment, inter alia, on a review of the
statutory provisions of the Civil Rights Act of 1991 in relation
to one another and on principles of statutory interpretation which
require statutes to be interpreted as a whole. In particular, the
Commission discussed the meaning of the statute's definition of the
term "complaining party" and the significance of the reference to
the word "action" in Section 102(a). In addition to the specific
reasons set forth in Jackson for this holding, Section 2000e-16(b)
(Section 717) of the Civil Rights Act of 1964 (42 U.S.C. � 2000(e)
et. seq.)(CRA) conveyed to the Commission the broad authority in the
administrative process to enforce the nondiscrimination provisions of
subsection (a) through "appropriate remedies." Similarly, in Section
3 of the Civil Rights Act of 1991 (CRA of 1991), Congress refers to
its first stated purpose as being "to provide appropriate remedies for
intentional discrimination and unlawful harassment in the workplace;",
thereby reaffirming that authority. Consequently, it is our view that in
1991, Congress clearly intended to expand the scope of the "appropriate
remedies" available in the administrative process to federal employees who
are victims of discrimination. Moreover, in Section 717(c) of the CRA,
the term "final action" is used to refer to administrative decisions by
agencies or the Commission, as distinguished from the term "civil action,"
used to describe the rights of employees after such final action is taken.
Therefore, the Commission reaffirms the holding therein. See Cobey Turner
v. Department of the Interior, EEOC Appeal Nos. 01956390 and 01960518
(April 27, 1998).