Patricia L. Christmon, Complainant,v.R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMar 18, 2005
07a50006 (E.E.O.C. Mar. 18, 2005)

07a50006

03-18-2005

Patricia L. Christmon, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.


Patricia L. Christmon v. Department of Veterans Affairs

07A50006

March 18, 2005

.

Patricia L. Christmon,

Complainant,

v.

R. James Nicholson,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 07A50006

Agency No. 200L-0629-200210207

Hearing No. 270-2003-09152X

DECISION

Following its October 7, 2004 final order, the agency filed a timely

appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405.

On appeal, the agency requests that the Commission affirm its rejection of

an EEOC Administrative Judge's (AJ) finding that the agency discriminated

against complainant on the basis of race. The agency also requests

that the Commission affirm its rejection of the AJ's order to award

complainant compensatory damages and other relief. For the following

reasons, the Commission MODIFIES the agency's final order.

Complainant, a contract Dental Assistant employed at the agency's VA

Medical Center in New Orleans, Louisiana, filed a formal EEO complaint

with the agency on May 31, 2002, alleging that the agency discriminated

against her on the bases of race (African-American) and sex (female)

when on April 4, 2002, the agency terminated her.

At the conclusion of the investigation, complainant was provided a

copy of the investigative report and requested a hearing before an AJ.

Following the hearing, the AJ found that complainant established a prima

facie case of race discrimination but failed to establish a prima facie

case of sex discrimination. The AJ found that the agency's cited reasons

for its actions were unworthy of belief and lacked evidentiary support.

Specifically, the AJ concluded that although the agency claimed that

complainant was terminated mainly because she used 470 hours of leave,

the agency failed to produce any of complainant's official original

time and attendance records nor any testimony from complainant's

first-line supervisor. The AJ did not find a document produced by the

Administrative Officer for the instant litigation to be credible. The AJ

further found that the Administrative Officer lacked first-hand knowledge

of complainant's leave usage, and �her testimony is not consistent with

the other facts of the case, contradicts the Complainant's credible

testimony, contradicts the credible testimony of other witnesses, and

was internally inconsistent.� The AJ summarized the Administrative

Officer's hearing testimony as �evasive,� while finding complainant's

testimony to be �highly credible� because it was first-hand, internally

consistent, corroborated by unbiased witnesses, and uncontradicted by

evidence. Additionally, the AJ concluded that the record demonstrated

that a white dental assistant who worked for the same supervisor as

complainant had a �much worse� leave record, yet was not terminated.

The AJ determined that although the agency maintained that complainant's

presence at the facility was critically important, it allowed the white

dental assistant to liberally abuse leave without being removed. The AJ

further determined that complainant's supervisor and a white co-worker had

a history of racial bias against black employees and acted in concert with

the Administrative Officer to influence the Chief of the Dental Service to

remove complainant. �I therefore find that [the Administrative Officer]

and [complainant's supervisor] engineered complainant's termination

by feeding misleading and outright false information to [Chief of the

Dental Service], and pressuring him to act on it,� the AJ concluded.

The AJ ordered the agency to reinstate complainant within 30 days of

the receipt of his order, pay complainant $33,000.00 in back pay for 18

months<1> of lost salary (plus any additional amounts complainant would

have received in promotions and cost-of-living adjustments, if any),

and $95,000.00 in non-pecuniary compensatory damages. The AJ further

ordered the agency to pay the difference between complainant's current

salary and the salary she would have earned at the agency had she not been

terminated, to be paid on a pro rata basis for the time period between

October 19, 2003, and the date on which complainant was reinstated.

The agency's final order rejected the AJ's decision. On appeal,

the agency argues that the AJ erred by comparing complainant, a

contract employee, with a white employee who was a career employee.

The agency maintains that as a career employee, the White employee

was subject to progressive discipline, whereas complainant was an

at-will employee who could be summarily terminated by the contractor

without progressive discipline. The agency contends that the career

employee's situation is also distinguishable from complainant's because

the career employee improved her attendance after receiving counseling

and a reprimand over time, whereas complainant's attendance problems

continued after the contractor and agency management counseled her.

The agency contends that most of complainant's leave was unscheduled,

which is more disruptive to the work environment than scheduled absences.

The agency also argues that the AJ erroneously concluded that the

Administrative Officer had no first-hand knowledge of complainant's leave

and attendance, although the Administrative Officer was complainant's

timekeeper. The agency further argues that complainant's leave problems

were corroborated by the third-line supervisor who testified that he had

conversations with complainant's first-line supervisor about her leave

problems and a management official of the contractor who testified that

complainant had problems while employed with the agency.

Regarding the damages awarded by the AJ, the agency maintains that the AJ

erred by reinstating complainant. The agency maintains that complainant's

employment with the agency would have ended on August 31, 2002, when

the contractor's contract with the agency expired. The agency contends

that the AJ erroneously determined that two other contract employees

had become permanent employees, but were actually advised that they

needed to apply for employment with the new contractor if they wanted

to remain employed. Finally, the agency contends that the AJ's award

of $90,000.00 in non-pecuniary compensatory damages was excessive.

The record reveals that complainant worked as a contract dental assistant

with the agency from January 2001 until her termination in April 2002.

At the time of her termination, there were five permanent dental

assistants and three contract dental assistants.<2> During the hearing,

complainant testified that her immediate supervisor never told her that

her leave usage was unacceptable. Complainant also testified that a white

female dental assistant was often absent from work but was not terminated.

The Administrative Officer to the Dental Service, a white female,

testified that on January 30, 2002, she witnessed an altercation between

complainant and a white dental assistant wherein both parties loudly

argued in front of patients. She testified that she was responsible for

complainant's time and attendance records. She stated that she created a

document entitled �Time and Attendance Records for Complainant� in order

to assist with the EEO investigation. She testified that the official

time sheets were signed by complainant and transmitted to the contractor.

She testified that complainant used approximately 470 hours of leave,

which jeopardized the work of the clinic. �When the complainant would

have to leave in the middle of the day for whatever reason or come late

or not come at all, it caused great problems throughout the clinic for

patient care,� she stated. She further stated that she informed the

Chief of the Dental Service about complainant's attendance problems.

The Chief of Dental Service testified that he issued complainant a

proposed reprimand and the white female dental assistant a letter

of reprimand concerning their altercation. He testified that after

complainant failed to show up for work, the Administrative Officer came

to him and stated, �We've got to do something about this.� He stated

that he then called the contractor and relayed to him the attendance

problems reported by the Administrative Office. He testified that the

contractor made the ultimate decision to terminate complainant primarily

because of excessive absences. The Chief of the Dental Service stated

that the white dental assistant was not terminated for the altercation

and leave issues because, unlike complainant, she was a career federal

employee subject to progressive discipline. He noted that the white

dental assistant was counseled about her leave usage on December 4,

2001 and issued a written warning on March 8, 2002. He further testified

that while the white dental assistant's leave use improved after she was

issued the warning, he received feedback from complainant's supervisor

that complainant's leave use did not improve after she was counseled

on the matter. Additionally, the Chief of Dental Service testified

that a report from a dentist that complainant had problems completing

tasks and an incident wherein complainant �abandoned� a patient during

a procedure to answer a telephone call were very minor factors in the

agency's decision to terminate complainant.

The Supervisor for the Dental Assistants stated that he had no first-hand

knowledge of complainant's work performance but noted that complainant's

immediate supervisor discussed complainant's attendance problems with

him approximately six times and felt she could not rely on complainant.

In an investigative affidavit, the President of the contractor that

employed complainant stated that the agency called his company and

�impressed very strongly that they wanted [complainant] to be released

for cause.� He stated that his company communicated with the Chief of

Dental Service regarding complainant's leave issues.

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by

an AJ will be upheld if supported by substantial evidence in the record.

Substantial evidence is defined as �such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.� Universal

Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)

(citation omitted). A finding regarding whether or not discriminatory

intent existed is a factual finding. See Pullman-Standard Co. v. Swint,

456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a

de novo standard of review, whether or not a hearing was held.

Generally, in order to establish a prima facie case of discrimination

based on race and sex, the complainant must demonstrate that: (1) she is

a member of a protected class; and (2) she was treated differently, with

respect to some condition of employment, from others outside her protected

class and in a manner that creates an inference of discrimination.

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). However, proof

of a prima facie case will vary depending on the facts of the particular

case. Id. at 804.

The AJ found that complainant, a contract dental assistant, was similarly

situated to a white dental assistant who was a federal employee because

she was essentially treated the same as dental assistants who were

federal employees with regard to discipline.<3> We find that the AJ

erred in this conclusion. We have held that in order to be considered

similarly situated, the persons with whom the complainant is comparing

herself must be similar in substantially all aspects, so that it would

be expected that they would be treated in the same manner. Murray

v. Thistledown Racing Club, Inc., 770 F.2d 63, 68 (6th Cir. 1985);

Majahad v. Department of Labor, 915 F. Supp. 499 (D.C. MA 1996)(in

order to establish disparate treatment, comparators to the probationary

complainant were other probationary employees). Here, we find that

complainant was not similarly situated to the white dental assistant.

In so finding, we note that although the agency may have chosen to treat

complainant similarly to the dental assistant with whom she had the

altercation, there was no expectation that she would be treated in the

same manner as career federal employees with respect to all disciplinary

matters because contract employees are subject to different disciplinary

procedures and employment protections than federal employees.<4>

Nonetheless, we find that other evidence in the record supports an

inference that the agency's actions resulted from race discrimination.

Although the Commission often uses the �similarly situated employee� model

to determine whether a complainant has established a prima facie case,

the Supreme Court has held that comparative evidence is not an essential

element of a prima facie case of discrimination. O'Connor v. Consolidated

Coin Caterers Group, 517 U.S. 368, 116 S. Ct. 1307, 134 L.Ed.2d 433

(1996). At a minimum, complainant must present evidence which, if

unrebutted, would support an inference that the agency's actions resulted

from discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567,

576 (1978).

Complainant alleged, with corroborating affidavits, that she and other

black employees in the dental office were subjected to pervasive

discrimination. A dentist assistant stated that she heard the

white dental assistant tell a co-worker that she was responsible for

complainant's termination. In an investigative affidavit, the dentist

whom complainant assisted stated that she heard the white dental

assistant state that complainant was a �n-----� and vow several times

that either she or complainant would have to go. She further stated that

�it seemed that the whole time we were there, that the African-American

females seemed to be in the most trouble for reasons that I could not

explain.� A dental lab assistant stated that she heard the white

dental assistant state that �she hated that n-----� when referring

to complainant, and the dental office was rife with discrimination

against blacks. Additionally, a dental assistant stated that in her 14

years of working at the office, she noticed that black contract workers

were treated worse than white contract workers. Finally, we note that

complainant's first-line supervisor was disciplined by the agency in

March 2002 for inappropriate actions towards a black subordinate that

demonstrated a �lack of sensitivity across cultural lines.� We find that

this evidence is sufficient to support an inference of race discrimination

regarding complainant's termination; therefore, we find that complainant

has established a prima facie case of race discrimination. See Saenz

v. Department of the Navy, EEOC Request No. Request No. 05950927

(January 09, 1998) (inference of discrimination found where several

witnesses testified that the Personnel Director treated Hispanic women

more harshly than he treated other persons under his supervision).

However, we find that complainant failed to present evidence from which

an inference of sex discrimination could be established. Consequently,

we find that complainant failed to establish a prima facie case of sex

discrimination.

The burden of production now 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,

in other words, "going forward," may shift, the burden of persuasion,

by a preponderance of the evidence, remains at all times on complainant.

Burdine, 450 U.S. at 256.

In this matter, the agency responded that complainant was terminated

mainly for amassing excessive absences. The AJ found the agency

gave a false reason for terminating complainant in part because it

failed to produce any of complainant's official, original time and

attendance records nor any testimony from complainant's first-line

supervisor corroborating the Administrative Officer's testimony that

complainant amassed approximately 470 hours of leave while employed

at the agency. The AJ noted that its own documents, prepared by the

Administrative Officer for the instant litigation, only showed that

complainant used 378.25 hours of leave. The agency argues that the

Administrative Officer had first-hand knowledge of complainant's leave

and attendance as complainant's timekeeper and verified complainant's

excessive absences. The agency further argues that complainant's leave

problems were corroborated by the Chief of Dental Service who testified

that he had conversations with complainant's first-line supervisor

about complainant's leave problems and the contractor who testified that

complainant had problems while employed with the agency.

However, we note that the Administrative Officer's credibility regarding

complainant's leave use is severely undermined by her inability to produce

complainant's official leave records and the significant contradiction

between her testimony and the documentation she produced in preparation

for litigation. Significantly, the Administrative Officer testified that

the agency still had copies of original time and attendance documents at

the time of the hearing, yet the agency failed to produce these documents

for the record. We also find that the Chief of Dental Service and

contractor's testimony regarding complainant's leave use does not validate

the agency's claim because the Chief of Dental Service merely relied upon

information relayed to him by the Administrative Officer and complainant's

first-line supervisor, which was then relayed to the contractor by the

Chief of Dental Service. There is no evidence that the Chief of Dental

Service nor the contractor directly observed complainant's alleged leave

abuses. Moreover, we note that complainant's first-line supervisor,

who would ostensibly have first-hand knowledge of complainant's leave

usage, did not submit an affidavit nor testify during the hearing.

We further note that the AJ found that the agency's claim that complainant

abandoned a patient during a dental procedure lacks credence because this

claim arose during the hearing for the first time, and no documentary

evidence supported the agency's assertion that it ever occurred. The AJ

further found that the agency's claim that complainant had interpersonal

problems with several co-workers and performed her job duties poorly

is contradicted by her performance evaluation covering April 1, 2001 to

March 31, 2002. The evaluation stated that complainant gives �courteous,

accurate, and complete responses� and �treats all employees with respect

regardless of their level, personality, culture, or background� under

�Interpersonal Effectiveness.� Complainant was rated �Successful� in

all elements, including Customer Service, Clinical and Administrative

Duties, and Safety. We find that the AJ's conclusions regarding these

matters is supported by substantial evidence.

Finally, we note that the AJ found complainant's hearing testimony to

be very credible and corroborated by witness testimony. �I found her

composed and unhesitant,� the AJ stated. The AJ further found that

the Administrative Officer was not a credible and appeared evasive. The

Commission determines that in this case, the credibility determinations of

the AJ are entitled to deference due to the AJ's first-hand knowledge,

through personal observations, of the demeanor and conduct of the

witnesses at the hearing. Esquer v. United States Postal Service, EEOC

Request No. 05960096 (September 6, 1996); Willis v. Department of the

Treasury, EEOC Request No. 05900589 (July 26, 1990).

In Reeves v. Sanderson Plumbing Products, Inc., 120 S.Ct. 2097 (2000),

a unanimous Supreme Court held that evidence showing that the employer

presented a false reason for a challenged action is sufficient in most

cases to support a finding of discrimination. Further, the Supreme

Court has held that pretext may also be proven where:

"[t]he factfinder's disbelief of the reasons put forward by the [employer]

(particularly if disbelief is accompanied by a suspicion of mendacity)

may together with the elements of the prima facie case, suffice to

show intentional discrimination. Thus, rejection of the [employer's]

proffered reasons will permit the trier of fact to infer the ultimate

fact of intentional discrimination."

St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511 (1993). In this

case, we find, as did the AJ, that complainant has met her burden in

establishing that the agency's articulated reasons for her termination,

i.e., that she amassed excessive absences, abandoned a patient during

a dental procedure, and had interpersonal problems with co-workers,

were pretextual explanations to cover race discrimination.

Therefore, for the reasons set forth above, we find that substantial

evidence supports the AJ's conclusion that the agency's proferred reasons

for terminating complainant was pretext for race discrimination and

REVERSE the agency's finding of no discrimination.

REMEDIES

The agency argues that the AJ erred when he ordered complainant to

be reinstated to her previous dental assistant position because the

agency's contract with complainant's employer ended on August 31, 2002.

The record contains a copy of an agency memorandum to two contract

dental assistants dated August 27, 2002 that stated that the contract

between the contractor who employed complainant and the medical center

expired effective August 31, 2002. The memorandum further stated that

another contract was awarded to another contractor and advised, �Should

you choose to apply with the new contractor, your application will be

considered with all other eligible candidates.� The record also contains

copies of the contracts between the agency and complainant's employer,

which reflect that the contract with the agency began on February 12,

1999 and terminated on August 31, 2002. Upon review of this matter, we

find that the AJ erred when he ordered the agency to reinstate complainant

to her dental assistant position because she �would still be employed at

the agency.�<5> Instead, the record reveals that after August 31, 2002,

complainant would have had to apply for a dental assistant position with

the new contractor. We find that it is too speculative to find that

complainant would have been hired by the new contractor. Therefore,

we find that reinstatement is improper as a remedy in this case.

The agency also contends that the AJ's award of $95,000.00 in nonpecuniary

compensatory damages was excessive. To receive an award of compensatory

damages, a complainant must demonstrate that she has been harmed as a

result of the agency's discriminatory action; the extent, nature, and

severity of the harm; and the duration or expected duration of the harm.

Rivera v. Department of the Navy, EEOC Appeal No. 01934157 (July 22,

1994), req. for recons. den., EEOC Request No. 05940927 (December 11,

1995); Enforcement Guidance: Compensatory and Punitive Damages Available

Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002

(July 14, 1992), at 11-12, 14.

Compensatory damages may be awarded for the past pecuniary losses,

future pecuniary losses, and non-pecuniary losses which are directly or

proximately caused by the agency's discriminatory conduct. EEOC Notice

No. 915.002 at 8. Objective evidence of compensatory damages can

include statements from the complainant concerning her emotional pain

or suffering, inconvenience, mental anguish, loss of enjoyment of life,

injury to professional standing, injury to character or reputation,

injury to credit standing, loss of health, and any other nonpecuniary

losses that are incurred as a result of the discriminatory conduct.

Statements from others, including family members, friends, health

care providers, other counselors (including clergy) could address the

outward manifestations or physical consequences of emotional distress,

including sleeplessness, anxiety, stress, depression, marital strain,

humiliation, emotional distress, loss of self-esteem, excessive fatigue,

or a nervous breakdown. See Lawrence v. United States Postal Service,

EEOC Appeal No. 01952288 (April 18, 1996), citing Carle v. Department of

the Navy, EEOC Appeal No. 01922369 (January 5, 1993). A proper award

of compensatory damages must satisfy two goals: (1) It must not be

"monstrously excessive;" and (2) It should be consistent with awards in

similar cases. See Jackson & Beaner v. U.S. Postal Service, EEOC Appeal

Nos. 01972555 & 01972556 (April 15, 1999).

After careful review, we find that the AJ's award of $95,000.00

in compensatory damages is excessive. In support of her compensatory

damages claim, complainant testified that she had to enroll in a homeless

and food stamp program after she was terminated. Complainant further

testified that a psychiatrist diagnosed her as depressed and placed her

on medication indefinitely. Additionally, complainant testified that she

was forced to move from her home to a crime and drug-ridden neighborhood

after the agency terminated her. She testified that she was embarrassed

by her financial situation and felt she had hit �rock bottom.� The

agency contends that while complainant contends that she suffered from

depression because of the discriminatory actions of the agency, she failed

to provide any medical documentation to substantiate this claim. We note

however that medical evidence is not a mandatory prerequisite for recovery

of compensatory damages. Carpenter v. Department of Agriculture, EEOC

Appeal No, 01945652 (July 17, 1995). In the absence of this evidence, a

complainant's own testimony, along with the circumstances of a particular

case, can suffice her burden in this regard. See U.S. v. Balistrieri,

981 F.2d 916, 932 (7th Cir. 1992), cert. denied, 114 S. Ct. 58 (1993).

Nonetheless, the absence of supporting evidence may affect the amount

of damages deemed appropriate in specific cases. Lawrence v. USPS,

EEOC Appeal No. 01952288 (April 18, 1996).

We note that the Commission has awarded compensatory damages in cases

somewhat similar to complainant's. See, e.g., Garrett v. United States

Postal Service, EEOC Appeal No. 07A30024 (February 25, 2004) ($35,000 in

non-pecuniary damages where complainant experienced emotional distress,

depression, anger, embarrassment, and humiliation, as well as headaches,

and sleep difficulties, which were corroborated by a friend); Henry

v. United States Postal Service, EEOC Appeal No. 07A20113 (August 6,

2003) ($35,000 in non-pecuniary damages where complainant testified

that he was unable to pay his bills, went on welfare, and experienced

embarrassment, humiliation, stress, and a lack of sleep and energy);

Shah v. Department of Veterans Affairs, EEOC Appeal No. 07A30040

(September 30, 2003) ($30,000 in non-pecuniary damages where complainant

experienced increased anxiety and depression, stomach distress, chest

palpitations, elevated blood pressure, and interference with social and

family relationships as a result of the discrimination). We point out

that non-pecuniary compensatory damages are intended to remedy a harm

and not to punish the agency for its discriminatory actions. See Memphis

Community School Dist. v. Stachura, 477 U.S. 299, 311-12 (1986) (stating

that a compensatory damages determination must be based on the actual

harm sustained and not the facts of the underlying case). Therefore, we

conclude that complainant shall be awarded $30,000.00 in damages because

the amount is adequate, and not excessive, to compensate complainant

for her suffering.

CONCLUSION

Therefore, after a careful review of the record, including arguments and

evidence not specifically discussed in this decision, the Commission

MODIFIES the agency's final order and directs the agency to take

corrective action in accordance with this decision and the Order below.

ORDER

The agency is ordered to take the following remedial action:

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

final, the agency shall pay complainant $30,000.00 in non-pecuniary

compensatory damages.

Within sixty (60) calendar days of the date ths decision becomes final,

the agency shall pay complainant back pay and other benefits due

from the date of her removal (April 4, 2002) until the termination of

the contract (August 31, 2002) with complainant's employer, plus any

additional amounts complainant would have received in promotions and

cost-of-living adjustments, if any. The agency shall determine the

appropriate amount of back pay, with interest, and other benefits due

complainant, pursuant to 29 C.F.R. � 1614.501. 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 take corrective, curative, and preventative actions to

ensure that violations of federal EEO law will not recur, including, but

not limited to, providing training in employment discrimination law for

the agency officials involved in the decision not to fire complainant.

The agency shall consider taking appropriate disciplinary action against

the responsible management officials. The Commission does not consider

training to be disciplinary action as noted above. The agency shall

report its decision to the compliance officer. If the agency decides

to take disciplinary action, it shall identify the action taken. If

the agency decides not 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 New Orleans, Louisiana facility

copies of the attached notice. Copies of the notice, after being

signed by the agency's duly authorized representative, shall be posted

by the agency within thirty (30) calendar days of the date this decision

becomes final, and shall remain posted for sixty (60) consecutive days,

in conspicuous places, including all places where notices to employees are

customarily posted. The agency shall take reasonable steps to ensure that

said notices are not altered, defaced, or covered by any other material.

The original signed notice is to be submitted to the Compliance Officer

at the address cited in the paragraph entitled "Implementation of the

Commission's Decision," within ten (10) calendar days of the expiration

of the posting period.

ATTORNEY'S FEES (H0900)

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

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

reasonable attorney's fees incurred in the processing of the complaint.

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

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

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

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

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

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

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

Compliance with the Commission's corrective action is mandatory.

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

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

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

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

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

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

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

order, the complainant may petition the Commission for enforcement

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

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

order prior to or following an administrative petition for enforcement.

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

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

the underlying complaint in accordance with the paragraph below entitled

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

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

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

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

administrative processing of the complaint, including any petition for

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

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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

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

arguments or evidence which tend to establish that:

1. The appellate decision involved a clearly erroneous interpretation

of material fact or law; or

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

practices, or operations of the agency.

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

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

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

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

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

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

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

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

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

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

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

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

proof of service on the other party.

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

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. Any supporting documentation

must be submitted with your request for reconsideration. The Commission

will consider requests for reconsideration filed after the deadline only

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

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)

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. 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

_March 18, 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. has occurred at the agency's New

Orleans, Louisiana facility (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

basis of race. The facility was ordered to pay the individual back pay

and compensatory damages. The agency was also ordered to pay proven

attorney fees, to provide relevant agency officials with training,

and to consider 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

1The record reveals complainant accepted a part-time job making $10,000.00

a year at another federal agency on October 19, 2003, 18 months after

being terminated from the Department of Veterans Affairs.

2Four of the permanent dental assistants are Black and one is was White.

Two contract dental assistants are Black and one is White.

3The AJ found that complainant was an aggrieved employee covered under

EEO Regulations. Because neither party contests this jurisdictional

conclusion on appeal, we will not review the AJ's determination on this

particular matter.

4In fact, we note that one of the agency's explanations for treating

complainant differently than the white contract dental assistant is

that as a contract employee, complainant was an at-will employee who

could be instantly dismissed by the contractor, whereas the white dental

assistant was a federal employee subject to progressive discipline and

grievance protections.

5We note that the AJ's Order was issued March 2, 2004.