John E. Eubanks, Complainant,v.Alphonso Jackson, Secretary, Department of Housing and Urban Development, Agency Appeal No. 01A40070 Agency Nos. FW-95-08 and FW-95-30

Equal Employment Opportunity CommissionSep 14, 2005
01a40070r (E.E.O.C. Sep. 14, 2005)

01a40070r

09-14-2005

John E. Eubanks, Complainant, v. Alphonso Jackson, Secretary, Department of Housing and Urban Development, Agency Appeal No. 01A40070 Agency Nos. FW-95-08 and FW-95-30


John E. Eubanks v. Housing and Urban Development

01A40070

September 14, 2005

.

John E. Eubanks,

Complainant,

v.

Alphonso Jackson,

Secretary,

Department of Housing and Urban Development,

Agency

Appeal No. 01A40070

Agency Nos. FW-95-08 and FW-95-30

DECISION

Complainant timely initiated an appeal from a final agency decision

concerning his 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. and the Age Discrimination in

Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.

The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the

following reasons, the Commission MODIFIES the agency's final decision.

The record reveals that during the relevant time, complainant was employed

as Director of Fair Housing Enforcement at the agency's facility in

Fort Worth, Texas. Complainant sought EEO counseling and subsequently

filed a formal complaint, alleging that he was discriminated against on

the bases of race (African-American), sex (male), and age (born June 6,

1933) when:

1. In the 1980's and in 1991 or 1992, the former Acting Regional

Administrator caused the Office of Inspector General to investigate

complainant on several occasions;

In the 1970's and 1980's, the former Acting Regional Administrator

controlled personnel actions pertaining to complainant's unit;

In the 1980's, the former Acting Regional Administrator influenced Title

VII investigations in situations where he had insufficient knowledge;

In January 1984, September 1984, and in 1989, the former Acting Regional

Administrator reassigned complainant on at least three occasions;

In 1987, the former Acting Regional Administrator reassigned members

of complainant's staff without notice or explanation;

In 1991 and in July 1994, the former Acting Regional Administrator

assigned personnel in Fair Housing and Equal Employment (FH&EO) who were

not competent or interested in fair housing, but who were placed there

to report FHEO activities to him, after complainant had been reassigned

from his position as Director of Compliance;

The EEO Counselor conducted a biased investigation and failed to follow

the usual procedures with regard to the EEO Counselor's report;

The agency required complainant to submit the time and attendance sheets

of his former staff for audit. When complainant voiced concern, he was

told that he should be more concerned with the Office of Special Counsel

(OSC) investigation;

In June 1993, complainant was required to turn over internal data

regarding the progress review of an employee because the OSC exerted

undue influence on the Personnel Division staff;

As part of its investigation, the OSC went to private housing providers

with unsupported allegations of sexual harassment in an effort to ruin

complainant's reputation.

When employees brought allegations that complainant sexually harassed

them to the attention of agency management, the allegations were treated

differently than similar allegations of discrimination against younger

non-Black males;

In July 1993, two employees were transferred from complainant's unit

without explanation, notice, or replacement, and assigned to the

Desegregation Coordinating Office (DCO) and PIH, after complaining to

management about complainant's alleged sexual harassment;

In March 1994, after the allegations of the above employees, management

reassigned complainant from his position as Director of Fair Housing

Enforcement, although white management employees have not been treated

similarly;

HUD has refused to provide legal representation for complainant as it

had done for white management officials who were charged with sexual

harassment or race discrimination; and

HUD failed to inform complainant of the OSC investigation and the

allegations made against complainant until the hearing on August 1 -

9, 1994, thereby denying complainant the opportunity to properly defend

himself against the charges.

Complainant further alleged that he was subjected to discrimination

on the bases or race, sex, age, and in reprisal for prior EEO activity

(arising under Title VII) when around February 1995, the agency failed

to select him for the positions of Director of Fair Housing Enforcement

Centers Program Operations or Director of Program Operations and

Compliance Centers.

In a final decision dated August 29, 2003, the agency dismissed claims

1 - 6 for untimely EEO Counselor contact. The agency dismissed claim 7

as a spin-off complaint expressing dissatisfaction with the processing of

his complaint. The agency further dismissed claims 8 - 10 for failure to

state a claim. Regarding claims 11 -15, the agency found that complainant

failed to establish prima facie cases of sex and race discrimination

for these matters. The agency also found that complainant established

prima facie cases of age discrimination for these matters because the

comparative employees were substantially younger than complainant and

�therefore not in [complainant's] age ban.� However, the agency further

found that complainant failed to prove that the agency's legitimate,

non-discriminatory reasons for its actions were pretext for unlawful

discrimination for claims 11 -15. Finally, regarding complainant's

non-selections, the agency found that complainant failed to establish

prima facie cases of race discrimination and reprisal. Although the

agency found that complainant established prima facie cases of age

and sex discrimination, the FAD concluded that complainant failed to

persuasively rebut the agency's legitimate, non-discriminatory reasons

for not selecting complainant with persuasive evidence of pretext.

Complainant is silent on appeal and the agency requests that we affirm

its FAD.

As a preliminary matter, we note that we review the decision on an

appeal from a final agency decision de novo. 29 C.F.R. � 1614.405(a).

Accordingly, we have carefully reviewed the entire record before us in

our attempt to discern whether a preponderance of the evidence warrants

a modification of the agency's ruling. See 29 C.F.R. � 1614.405(a).

Claims 1 - 6

The events in claims 1 - 5 spanned from the 1970's through 1992.

Complainant did not initiate EEO Counselor contact until July 25, 1994,

well beyond forty-five days after the events in claims 1 - 5 occurred.

Complainant has not argued that the time limits should be extended

or waived. Consequently, we find that the agency properly dismissed

claims 1 - 5.

In claim 6, complainant alleged that in 1991 and July 1994, the Deputy

Regional Administrator assigned personnel to FHEO who were not competent

or interested in fair housing so that they could report the activities

of FHEO to the Regional Administrator. The agency dismissed claim 6

for untimely Counselor contact. However, upon review of this matter,

we find that this matter is more appropriately dismissed for failure

to state a claim because complainant failed to specify how this alleged

matter resulted in harm or loss to the conditions, terms, or privileges

of his employment.

Claim 7

Complainant alleges that the EEO Counselor conducted a biased

investigation at the request and direction of the Deputy Regional

Administrator. Claim 7 concerns purported improper and biased handling

of complainant's EEO complaint by the EEO Counselor. When claims of

improper processing are raised, the complainant should be referred to the

agency official responsible for the quality of complaints processing,

and the agency should earnestly attempt to resolve any dissatisfaction

with the complaints process as early and expeditiously as possible. EEOC

Management Directive 110 (EEO MD-110), Chapter 5, (November 9, 1999).

Complainant is therefore advised to contact an official in the agency's

EEO office, if he believes that his complaint has been improperly

processed.

Claims 8 - 10

The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in

relevant part, that an agency shall dismiss a complaint that fails to

state a claim. An agency shall accept a complaint from any aggrieved

employee or applicant for employment who believes that he or she has been

discriminated against by that agency because of race, color, religion,

sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,

.106(a). The Commission's federal sector case precedent has long defined

an "aggrieved employee" as one who suffers a present harm or loss with

respect to a term, condition, or privilege of employment for which

there is a remedy. Diaz v. Department of the Air Force, EEOC Request

No. 05931049 (April 21, 1994).

Upon review of claims 8 - 10, we find that complainant failed to specify

how these alleged actions resulted in harm or loss to the terms,

conditions, or privileges of his employment to render him aggrieved

under EEO Regulations. Consequently, we find that the agency properly

dismissed these matters for failure to state a claim.

Claims 11 - 15

In claims such as the instant ones which allege disparate treatment

based upon race, sex, or age and where there is an absence of direct

evidence of such discrimination, the allocation of burdens and order

of presentation of proof is a three-step process. Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 142 (2000) (applying the analytical

framework described in McDonnell Douglas Corp. v. Green, 411 U.S. 792,

802-03 (1973), to an ADEA disparate treatment claim). First, complainant

must establish a prima facie case of discrimination by presenting

facts that, if unexplained, reasonably give rise to an inference of

discrimination; i.e., that a prohibited consideration was a factor in

the adverse employment action. Kimble v. Department of the Navy, EEOC

Appeal No. 01983020 (Aug. 22, 2001).

The burden of production then shifts to the agency to articulate a

legitimate, nondiscriminatory reason for its actions. Texas Department

of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the

agency has articulated such a reason, the question becomes whether the

proffered explanation was the true reason for the agency's action, or

merely a pretext for discrimination. St. Mary's Honor Center v. Hicks,

509 U.S. 502, 511 (1993). Although the burden of production may shift,

the burden of persuasion, by a preponderance of the evidence, remains

at all times on complainant. Burdine, 450 U.S. at 256.

Complainant alleged that the Deputy Regional Administrator urged

white females to file sexual harassment complaints against him.

The record reveals that in April 1993, the agency's Office of Inspector

General requested that the Office of Special Counsel (OSC) investigate

allegations of sexual harassment against complainant. In July 1993,

two of complainant's accusers were transferred to other offices.

On March 9, 1994, the OSC charged complainant with sexually harassing

five female employees and requested that disciplinary action be imposed

on complainant. The complaint alleged complainant violated 5 U.S.C. �

2302(b)(1)(A), which prohibits discrimination on the basis of sex, and

5 C.F.R. � 735.203, which prohibits federal employees from engaging in

"criminal, infamous, dishonest, immoral, or notoriously disgraceful

conduct prejudicial to the government." In response to the charges,

complainant was detailed to other positions beginning in April 1994.

Complainant alleged that younger White male supervisors were not

subjected to the same actions when sexual harassment claims were made

against them. Complainant further alleged that the Regional Administrator

represented other employees who were charged with sexual harassment,

but acknowledged that he did not have all the details of this claim.

Complainant maintained that the agency failed to identify the persons

who claimed he harassed them or details about the alleged incidents

until the hearing in August 1994. �I was given a verbal notice of

a sexual harassment complainant by [the Director of Administration]

in late June or July of 1993. I was given no person or persons, I was

given no particulars,� complainant stated in an investigative affidavit.

In August 1994, the Merit Systems Protection Board (MSPB) found that

the OSC failed to prove the charges against complainant.

In an affidavit, the former Director of Human Resources responded that

employees under complainant's supervision were detailed outside of FHEO

because they claimed that complainant had sexually harassed them.

The Supervisory Equal Opportunity Specialist (EEOS) stated in an

affidavit that he participated in the decision to reassign complainant.

He stated that complainant was reassigned because there were concerns

about allowing complainant to remain in a supervisory capacity while

there were formal charges lodged against him by the OSC. He further

stated that complainant was transferred to unclassified duties in

FHEO in April 1994, and shortly thereafter reassigned to the Office of

Counsel in order to alleviate the concerns of employees who objected to

his presence in FHEO. �To my knowledge, no other senior official in the

Southwest Area, formerly called Region VI, have had charges filed against

them by the Office of Special Counsel,� EEOS maintained. EEOS further

maintained that the agency does not provide legal representation to

employees when charges are filed against them by the OSC. EEOS also

contended that complainant received a copy of the charges filed by the

OSC in March 1994, well before the August 1994 hearing.

Upon review of these claims, we find that the agency provided legitimate,

non-discriminatory reasons for claims 11 - 15 that were not persuasively

rebutted by complainant as pretext for unlawful discrimination. In

so finding, we particularly note that complainant failed to provide

any evidence that the agency provided legal representation to other

employees investigated for sexual harassment beyond his bare assertion.

Complainant objects to the agency's removal of employees from under his

supervision after they claimed he harassed them and to his reassignment.

However, we note that the agency is obligated by law to take prompt

corrective action to prevent any further harassment, even while an

investigation of the claims is pending. We also find that two White

supervisors cited by complainant as comparatives were never formally

charged by OSC with sexual harassment, and were therefore not similarly

situated to complainant. Moreover, the record reveals that complainant

was not reassigned from his position until formal charges were lodged

by OSC . There is no evidence that any supervisor charged with sexual

harassment by OSC was treated any differently. Consequently, we find

that the agency properly found no discrimination for claims 11 - 15.

Moreover, because complainant failed to show that the agency's articulated

legitimate, nondiscriminatory reasons for its actions were pretext for

unlawful discrimination, complainant also failed to establish that he

was a victim of harassment. See Bennett v. Department of the Navy, EEOC

Request No. 05980746 (September 19, 2000); Applewhite v. Equal Employment

Opportunity Commission, EEOC Appeal No. 01994939 (April 6, 2000).

Non-Selections

Complainant contends that although he does not have any detailed knowledge

about the qualifications of the selectees for the positions of Director

of Fair Housing Enforcement Centers Program Operations and Director of

Program Operations and Compliance Centers, he is more qualified for the

positions because of his 26 years of service with the agency and his

�Highly Successful� performance appraisals.

The record reveals that complainant made the best qualified lists for the

positions, but four other applicants were selected for the positions. The

selectees were as follows at the time of the non-selections: 1) a 50-year

old Black female with prior EEO activity; 2) a 46-year old Black male

with no EEO activity; 3) a 43-year old Black female with no EEO activity;

and 4) a 49-year old Black male with no EEO activity.

As an initial matter, we first find that complainant failed to prove prima

facie cases of race discrimination and reprisal. In so finding, we note

that all of the selectees were Black. Complainant has offered no evidence

from which an inference of race discrimination can be made. Further,

there is no evidence that the selecting official or anyone else involved

in the selection process was aware of complainant's prior EEO complaint

filed in October 1994 when the selections were made. Nevertheless,

we find that complainant established prima facie cases of sex and age

discrimination by demonstrating that he was not selected for the two

positions at issue, was qualified for the positions, and females and

persons substantially younger than he were selected for each position.<0>

Having established prima facie cases of discrimination based on age

and sex, the burden of production shifts to the agency to articulate

a legitimate, nondiscriminatory reason for not selecting complainant.

The record reveals that the selecting official, the former Assistant

Secretary for FHEO, did not

submit an affidavit or otherwise respond to the investigation concerning

the relevant non-selections.<0> The record reveals that after failing to

respond to two requests for information from the EEO investigator, the

General Deputy Assistant Secretary for FHEO (DAS) finally responded to

complainant's non-selection claims. No other agency official responded

to the non-selection claims. In her two-page affidavit, the DAS stated

that she was not the selecting official for either position. However,

she stated the following:

The [former] Assistant Secretary for FHEO chose the selectees based on

the recommendations from the Headquarters Program Directors who had

reviewed the description in the applicant's SF-171s which reflected

their past and present work experiences as related to the quality

of the ranking factors. The Assistant Secretary relied on the

information provided by the Headquarters Program Directors, along

with their knowledge of the supervisory and leadership potential of

the applicants, and in light of FHEOS mission, the Program Directors

recommended to the Assistant Secretary those individuals who best

demonstrated the skills and abilities needed for success in these newly

established positions. The group met with [the Assistant Secretary]

and gave her the recommendations.

We note that in order to meet its burden of production, the agency's

explanation must be sufficiently clear to raise a "genuine issue of

fact" as to whether discrimination occurred. Burdine, 450 U.S. at 254.

Moreover, it must "frame the factual issue with sufficient clarity so

that [complainant] will have a full and fair opportunity to demonstrate

pretext." 450 U.S. at 255-256; Parker v. United States Postal Service;

EEOC Request No. 05900110 (April 30, 1990) (citing Burdine, 450 U.S. at

256); see also St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993),

citing U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711,

716 (1983) and Burdine, 450 U.S. at 256. While the agency's burden of

production is not onerous, it must nevertheless provide a specific, clear,

and individualized explanation for the treatment accorded the affected

employee. Lorenzo v. Department of Defense, EEOC Request No. 05950931

(November 6, 1997).

Upon review of the matter, we conclude that the DAS's statement does not

meet the agency's burden of production in this case. In so finding,

we note that the statement does not explain why the agency did not

select complainant for the positions, rather it is a general summary of

the mechanics of the selection process. The agency failed to give an

individualized explanation why it did not select complainant for the

positions or why it chose the particular selectees for the positions,

providing us with no insight on how complainant's qualifications

were evaluated in comparison to the selectees' qualifications for the

positions.<0> Moreover, while the agency's final decision attempts to

rehabilitate the agency's failure to provide a meaningful explanation

for the selections, we find that its mere restatement of the experience

and education reflected in the candidates' applications likewise fails

to provide us with legitimate, non-discriminatory reasons for not

selecting complainant for the positions. Although the agency contends

that the selecting official's retirement precluded her from submitting

an explanation for the non-selections, we note that the agency also

failed to provide affidavit statements from the program directors who

recommended the selectees to the selecting official. Consequently,

having established prima facie cases of race and age discrimination,

complainant prevails without having to make any demonstration of pretext.

See Young v. Department of the Treasury, EEOC Request 05940517 (October

13, 1995)(discrimination found where agency's failure to adequately

explain its non-selection deprived complainant of a fair opportunity to

demonstrate pretext). Thus, we find that complainant was discriminated

against on the bases of sex, in violation of Title VII, and age, in

violation of the ADEA, when he was not selected for the positions of

Director of Fair Housing Enforcement Centers Program Operations or

Director of Program Operations and Compliance Centers.

Therefore, after a careful review of the record, we AFFIRM the final

agency's determination on claims 1 - 15 for the reasons set forth in

this decision. The Commission REVERSES the agency's finding of no

discrimination on complainant's non-selection claims and directs the

agency to undertake remedial action in accordance with the orders

below.

ORDER

The agency is ORDERED to take the following remedial actions:

Within thirty (30) calendar days from the date this decision becomes

final, the agency shall offer complainant either the position of

Director of Fair Housing Enforcement Centers Program Operations, GS-15,

or Director of Program Operations and Compliance Centers, GS-15, or a

substantially equivalent position. Complainant shall be given a minimum

of fifteen days from receipt of the offer of placement within which

to accept or decline the offer. Failure to accept the offer within

the time period set by the agency will be considered a rejection of

the offer, unless complainant can show that circumstances beyond his

control prevented a response within the time limit

The agency shall determine the appropriate amount of back pay, 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

is received. 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 undertake a supplemental investigation to determine

complainant's entitlement to compensatory damages under Title VII.<0>

The agency shall give complainant notice of his right to submit objective

evidence (pursuant to the guidance given in Carle v. Department of the

Navy, EEOC Appeal No. 01922369 (January 5, 1993)) and request objective

evidence from complainant in support of her request for compensatory

damages within forty-five (45) calendar days of the date complainant

receives the agency's notice. No later than ninety (90) calendar days

after the date that this decision becomes final, the agency shall issue

a final agency decision addressing the issue of compensatory damages.

The final decision shall contain appeal rights to the Commission.

The agency shall submit a copy of the final decision to the Compliance

Officer at the address set forth below.

The agency shall provide EEO training to all responsible management

officials regarding their obligations under Title VII and the ADEA; and

The agency shall consider taking appropriate disciplinary action

against the responsible management officials, including the program

directors who recommended the selectees to the selecting official.

The Commission does not consider training to be disciplinary action.

The agency shall report its decision to the compliance officer.

If the agency decides to take disciplinary action, it shall set forth

the reason(s) for its decision not to impose discipline. If any of

the responsible management officials have left the agency's employ,

the agency shall furnish documentation of their departure date(s).

POSTING ORDER (G0900)

The agency is ordered to post at its Fort Worth, Texas; Atlanta,

Georgia; and Denver, Colorado facilities copies of the attached notice.

Copies of the notice, after being signed by the agency's duly authorized

representative, shall be posted by the agency within thirty (30) calendar

days of the date this decision becomes final, and shall remain posted

for sixty (60) consecutive days, in conspicuous places, including all

places where notices to employees are customarily posted. The agency

shall take reasonable steps to ensure that said notices are not altered,

defaced, or covered by any other material. The original signed notice

is to be submitted to the Compliance Officer at the address cited in

the paragraph entitled "Implementation of the Commission's Decision,"

within ten (10) calendar days of the expiration of the posting period.

ATTORNEY'S FEES (H0900)

If complainant has been represented by an attorney (as defined by 29

C.F.R. � 1614.501(e)(1)(iii)), he is entitled to an award of reasonable

attorney's fees incurred in the processing of the complaint under Title

VII. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be

paid by the agency. The attorney shall submit a verified statement of

fees to the agency -- not to the Equal Employment Opportunity Commission,

Office of Federal Operations -- within thirty (30) calendar days of this

decision becoming final. The agency shall then process the claim for

attorney's fees in accordance with 29 C.F.R. � 1614.501.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement

of the order. 29 C.F.R. � 1614.503(a). The complainant also has the

right to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).

Alternatively, the complainant has the right to file a civil action on

the underlying complaint in accordance with the paragraph below entitled

"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.

A civil action for enforcement or a civil action on the underlying

complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)

(1994 & Supp. IV 1999). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 29 C.F.R. � 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. The appellate decision involved a clearly erroneous interpretation

of material fact or law; or

2. The appellate decision will have a substantial impact on the policies,

practices, or operations of the agency.

Requests to reconsider, with supporting statement or brief, must be filed

with the Office of Federal Operations (OFO) within thirty (30) calendar

days of receipt of this decision or within twenty (20) calendar days of

receipt of another party's timely request for reconsideration. See 29

C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests

and arguments must be submitted to the Director, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. In the absence of a legible postmark, the

request to reconsider shall be deemed timely filed if it is received by

mail within five days of the expiration of the applicable filing period.

See 29 C.F.R. � 1614.604. The request or opposition must also include

proof of service on the other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. Any supporting documentation

must be submitted with your request for reconsideration. The Commission

will consider requests for reconsideration filed after the deadline only

in very limited circumstances. See 29 C.F.R. � 1614.604(c).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0900)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. You have the right to file a civil action in

an appropriate United States District Court within ninety (90) calendar

days from the date that you receive this decision on both that portion

of your complaint which the Commission has affirmed and that portion

of the complaint which has been remanded for continued administrative

processing. In the alternative, you may file a civil action after

one hundred and eighty (180) calendar days of the date you filed your

complaint with the agency, or your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

If you file a civil action, you must name as the defendant in the

complaint the person who is the official agency head or department head,

identifying that person by his or her full name and official title.

Failure to do so may result in the dismissal of your case in court.

"Agency" or "department" means the national organization, and not the

local office, facility or department in which you work. If you file

a request to reconsider and also file a civil action, filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1199)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court appoint

an attorney to represent you and that the Court permit you to file the

action without payment of fees, costs, or other security. See Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).

The grant or denial of the request is within the sole discretion of

the Court. Filing a request for an attorney does not extend your time

in which to file a civil action. Both the request and the civil action

must be filed within the time limits as stated in the paragraph above

("Right to File A Civil Action").

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

_September 14, 2005_____________

Date

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 Title VII of the Civil Rights Act of 1964 (Title VII),

as amended, 42 U.S.C. � 2000e et seq., and the Age Discrimination in

Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.,

has occurred at the agency's Fort Worth, Atlanta and Denver facilities

(hereinafter this �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 DISABILITY with respect to hiring, firing,

promotion, compensation, or other terms, conditions or privileges of

employment.

This facility was found to have discriminated against an employee on the

bases of sex and age when he was not selected for two positions with the

agency. The facility was ordered to offer the employee the positions with

back pay, interest, and other benefits due; to pay proven compensatory

damages and attorney's fees; to provide appropriate training; and to

consider appropriate discipline. This 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 and will not retaliate against employees who file EEO complaints.

This facility will comply with federal law and 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

0 1Complainant was born on June 6, 1933. The four selectees were born

in October 1944, July 1945, September 1948, and December 1951.

0 2The agency maintains that the former Assistant Secretary did not

respond to the investigation because she had retired by the time the

investigation began.

0 3We note that the record contains copies of Applicant Rating Worksheets

for some applicants. However, these copies are either illegible,

incomplete, or mere summaries of the experience of the candidates,

therefore providing very little insight on why complainant was not

selected for the positions.

0 4We note that compensatory damages and attorney's fees are not available

under the ADEA and that complainant's entitlement to such relief results

from the Commission's conclusion that the agency violated Title VII.