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.