01970837
04-27-2001
Robert C. Hoyle Complainant, v. Gale A. Norton, Secretary, Department of the Interior, (National Park Service), Agency.
Robert C. Hoyle v. Department of the Interior
01970837
04-27-01
.
Robert C. Hoyle
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
(National Park Service),
Agency.
Appeal No. 01970837
Agency Nos. FNP-94-007
FNP-94-111
FNP-94-148
DECISION
INTRODUCTION
On November 1, 1996, Robert C. Hoyle (the complainant) initiated a timely
appeal to the Equal Employment Opportunity Commission (the Commission).
Complainant alleged that he was discriminated against on the bases
of his disability (perceived weight problem), age (DOB: 1/28/44) and
previous EEO activity in violation of � 501 of the Rehabilitation Act
of 1973, as amended, 29 U.S.C. � 791 et seq., the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.,
and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq. The appeal is accepted by the Commission in accordance
with 29 C.F.R. � 1614.405.
ISSUES PRESENTED
1). Whether complainant proved, by a preponderance of the evidence,
that he was discriminated against because of his disability (perceived
weight problem) and age (DOB: 1/28/44) when:
a) he was not selected for a Park Ranger position, GS-025-05, for the
1993 Summer season;
b) his supervisor, A-2, the South District Naturalist, included negative
and inaccurate comments relating to his research techniques, use of time,
and the Visitor Center Operation in his performance appraisal; and
c) his supervisor included negative and inaccurate comments relating to
his appearance in his performance appraisal.
2). Whether complainant proved, by a preponderance of the evidence,
that he was subjected to reprisal for participating in protected EEO
activity when:
a) he was offered a position as a seasonal Park Ranger, GS-025-04, which
required him to commute rather than a position closer to his home; and
b) he was not selected for a seasonal Park Ranger position, GS-025-04,
during the second half of the 1994 Winter season.
BACKGROUND
Complainant filed three formal complaints on April 7, 1994, June 30,
1994, and August 31, 1994. The agency consolidated the three complaints
for processing. Following an investigation, complainant was provided a
copy of the investigative file and notified of his right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant did not
request a hearing. Therefore, the agency issued a final decision, dated
September 27, 1996, which found that complainant had not established
a prima facie case of discrimination with regard to any of his claims.
It is from this decision that complainant now appeals.
ANALYSIS AND FINDINGS
Complainant, in his formal complaint, described his disability in the
following manner:
At the beginning of the 1992 season, the Chief Naturalist, A-1, and I
had a conversation concerning the fit of my uniform. [I] informed [A-1]
at that time about a problem that I have that stems from severe weight
problems that I had as a child. These problems were a result of a medical
condition that was subsequently diagnosed and treated. Even though my
weight today is close to normal for a person of my height and build, my
weight distribution is still affected by the problems that I had years
ago. I carry some of my weight in two areas above my hips which causes
my pants to ride down somewhat in the back and my shirt to come slightly
'untucked' when I bend over even slightly. I discussed this problem with
my personal physician a number of years ago. It is [sic] his opinion
that cosmetic surgery would be necessary to correct this condition.
In his sworn affidavit, complainant, in large part, re-emphasized the
above comments. (ROI Exhibit 6, pgs. 29-33). On appeal, he argued that he
was regarded as being disabled by management officials who continually
referenced the fit of his uniform, which, he maintained, was a direct
result of his body shape and past weight history. The record, we note,
does not contain any medical information from a physician concerning
complainant's past medical condition, its treatment, or its effects on
his current physiological condition.<1>
Complainant's allegations of discrimination based on disability,
age and reprisal constitute claims of disparate treatment employment
discrimination. As such, they must be analyzed under the tripartite
analysis enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), Loeb v. Textron Inc., 600 F.2d 1003 (1st Cir. 1979); Hochstadt
v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318,
324 (D. Mass.), affirmed, 545 F.2d 222 (1st Cir. 1976); Heyman v. Queens
Village Committee for Mental Health for Jamaica Community Adolescent
Program, 198 F.3d 68 (2d Cir. 1999); and Swanks v. WMATA, 179 F.3d 929,
933-34 (D.C.Cir. 1999).
Complainant has the initial burden of proving, by a preponderance of
the evidence, a prima facie case of discrimination; the burden then
shifts to the employer to articulate some legitimate, nondiscriminatory
reason for its challenged action; and complainant must then prove,
by a preponderance of the evidence, that the legitimate reasons
offered by the employer were not its true reasons, but were a pretext
for discrimination. Complainant has the ultimate burden of showing
that discrimination occurred. Texas Department of Community Affairs
v. Burdine, 450 U.S. 248, 253 (1981).
Disability Discrimination
To establish a prima facie case, complainant must demonstrate that: (1)
he is an "individual with a disability"; (2) he is "qualified" for the
position held or desired; (3) he was subjected to an adverse employment
action; and (4) the circumstances surrounding the adverse action give
rise to an inference of discrimination. Lawson v. CSX Transportation,
Inc., 2001 WL 292999, F.3d (7th Cir. 2001). For purposes of
our analysis, we will assume that complainant was able to establish a
prima facie case of disability discrimination.
Age Discrimination
We find that complainant established a prima facie case of discrimination
based on age. Complainant need only present evidence which, if unrebutted,
would support an inference that the agency's actions resulted from
discrimination based on his age. Furnco Construction Co. v. Waters, 438
U.S. 567, 576 (1978). Here, the record shows that the selectees for the
position referenced in allegation 1(a) were both younger than complainant.
Allegation 1(a)
Complainant was employed as a seasonal Park Ranger, GS-4 in the Grand
Teton National Park. According to complainant, he worked as a Ranger
for a number of seasons and as a Lead Park Ranger at the GS-5 level. In
1992, he accepted a GS-4 position in the Interpretation Division, a
division in which he had previously worked. During the Spring of 1993,
complainant received a list of names of GS-4 employees who would be
rehired at the GS-5 level the next season. According to complainant,
his name was not on the list. The names of C-1 (DOB:10-24-66) and C-2
(DOB:3-13-69), however, were listed. Complainant testified that "both
of these people were very young, under 40, with very limited experience
in the National Park Service." (ROI Exhibit 6, page 4). According to
complainant, upon A-1's arrival in 1991, there began an effort to get rid
of older employees and to hire younger, inexperienced people for GS-3,
4, 5 and 6 positions. Complainant stated that:
[A-1] instituted an intern program where very young, recent college
graduates or whatever, maybe people still in college, were taken into
the intern program, and then the next year, they would - - attempts
would be made to hire those people as seasonal federal employees . . . .
(ROI Exhibit 6, page 7).
A-2, the selecting official, testified that, since he was new to the
park, the "[s]election of the GS-5s for that season was based entirely
on [his assistant B-1's] recommendation." (ROI Exhibit 7, page 5).
B-1, the previous season, was the Acting South District Naturalist and
complainant's supervisor. Complainant received a "Superior" rating from
B-1 for the 1992 season. According to A-2, C-1, C-2, and a returning GS-5
employee were recommended by B-1. A-2 testified that he asked B-1 to
justify the individuals that he recommended and they talked about each
of the people on the list. According to A-2, B-1 "felt supportive of
[complainant]," but he was more supportive of C-1 and C-2 because those
were the individuals who were hired.
B-1 testified that he submitted a list to A-2, which contained the names
of complainant, C-1 and C-2. According to B-1, complainant was ranked
first because he felt he was the best qualified person to be rehired as
a GS-5. (ROI Exhibit 12). B-1 testified that he did not keep a copy of
the list. Contrary to A-2's testimony, B-1testified that he and A-2 spoke
in great detail about complainant and his, B-1's, reasons for placing him
at the top of his list. According to B-1, A-2 stated that he wanted to
"wait on [complainant] to look at him a little closer." (ROI Exhibit 12,
page 11).
B-1 did not think there was a plan to get rid of older employees; he felt,
however, that employees with the most experience and knowledge were being
ignored or that their value was not being taken into account. B-1 also
testified that he did not understand why A-2 did not immediately accept
his recommendation of complainant. He became "uneasy" when A-2 stated
that he wanted to look at complainant further. B-1 felt that A-1 may
have spoken to A-2 about complainant's appearance.
The investigator asked A-2 about the conflict between B-1's testimony
that complainant was "at the top of his list" for a promotion to the GS-5
level and A-2's testimony that he hired the people who were recommended
to him by B-1. A-2 stated that he did not "think it was true" that B-1
recommended complainant as the best qualified for the position. A-2
indicated that, like B-1, he did not retain a copy of the list. Finally,
A-2 denied talking to A-1 about complainant's past duty performance or
appearance prior to making his selections. (ROI Exhibit 7, page 7).
Contrary to A-2's testimony, A-1 testified that, prior to the selections,
he spoke to A-2 about the concerns that the Superintendent had expressed,
in the past, about complainant's appearance. (ROI Exhibit 8, page
16). The discussion covered the appearance of complainant's uniform,
the fact that his shirttails were untucked, his pants were baggy,
his "windblown" appearance, and the fact that he had to be reminded
of these things. According to A-1, he also told A-2 that, during the
Summer of 1992, complainant had made efforts to improve his appearance.
A-1 was asked, by the investigator, whether he recommended against hiring
complainant. He responded that "I believe the question was asked and I
believe that I relayed to [A-2] my reservations of the previous season. I
also relayed to [A-2] the fact that I wasn't confident that those items
had been addressed." Finally, we note A-1's testimony regarding B-1's
efforts to get him to hire complainant in 1992.
In St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993), the Court
held that a fact finder is not required, as a matter of law, to find
discrimination whenever it finds that an employer's explanation for
its actions is not credible. Id. at 519. The Court, however, made
clear that a fact finder may find discrimination in such circumstances.
Id. at 524. The critical factor is that a fact finder must be persuaded
by the complainant that it was discrimination that motivated the employer
to act as it did. Id.
After a careful review of the record, we find that the preponderance of
the evidence indicates that A-2's testimony is not worthy of belief. B-1
testified that he told A-2 that complainant was the most qualified person
to be rehired at the GS-5 level for the upcoming season and that he was at
the top of his list. Taking into account B-1's efforts to get complainant
hired the previous season, we find it highly unlikely that he would have
left A-2 with the impression that he was more supportive of C-1 and C-2.
According to B-1, C-1 and C-2 "[w]ere people in my eyes that . . . we
could bring along and train and develop to be real good interpretive
members of the staff of Teton," but "they [were not] as qualified as
[complainant]. [Complainant] was a proven interpreter." (ROI Exhibit
12, page 13). We also note A-2's testimony that he did not speak to
A-1 about complainant before making his decision. This testimony is
directly contradicted by A-1. We find that complainant successfully
established that A-2's articulated reason for not rehiring him at the GS-5
level for the 1993 Summer season was a pretext for age discrimination.
Because A-2 selected two individuals, who were significantly younger than
complainant and failed to provide a credible reason why, we find that the
record supports a finding that complainant's age was the determinative
factor in his non-selection. We find, however, no persuasive evidence
that complainant's non-selection was based on a perceived disability.
Allegations 1(b) and 1(c)
In complainant's original performance appraisal for the period of March 7,
1993 to September 6, 1993, A-2 stated, in pertinent part, that:
His contacts with visitors were attentive and helpful. He did not put
his time between visitors to good use. I often observed him talking
with other rangers or reading nonresources material. [Complainant]
needs to work on using all his time for the good of visitors, and his
own development.
[Complainant's] weaknesses are in his appearance, in which he makes
a poor presentation, and in his use of time. He commonly did not use
his time effectively. His project for the season was to prepare new
bulletin boards. He had ample time in the schedule and was given special
project time, yet few of the bulletin boards are ready. With our staff's
increasing work load effective use of time is an important issue and
I do not feel that [complainant] made as big a contribution as he was
expected to make.
[Complainant] is honest and easy to get along with, and a good
interpreter. If he returns next Summer, I will expect him to be a
more useful member of the staff behind the scenes, by using his time
more wisely and increasing his output. Also by improving his uniform
appearance and by planning his interpretive programs using themes, goals
and objectives that lead visitors to understand larger concepts and why
they are important to them and preparing and turning in Program Plans
for all his presentations.<2>
Complainant testified that A-2 never told him that the bulletin board
project was a priority. He also provided explanations for why the
project was not completed. He indicated, for example, that he had to
make numerous requests for materials, and that some items took time to
arrive. According to complainant, A-2 had little knowledge of his actual
performance because he did not audit enough of his programs and did not
provide him with adequate guidance, for example, a mid-season evaluation.
Complainant also testified that rangers often speak to each other in
order to share information and to relieve tension. Finally, complainant
maintained that the material that he was reading was relevant to a project
he was working on. With regard to A-2's comments about his appearance,
complainant testified, in pertinent part, that he has always told his
supervisors about his weight distribution problem and has received
"Satisfactory" or higher ratings in the past.
A-2 testified that he did not have enough time to perform mid-term
performance evaluations during the 1993 summer season. According to A-2,
he spent most of his time with employees who need his help the most. He
did not believe complainant was one of those employees. A-2 stated that
the quality of complainant's programs was very good, but he was weak
with respect to his use of time and the completion of projects. With
regard to the amount of time complainant took to complete the bulletin
board project, A-2 stated that he informed complainant that this was
his highest priority. Instead of working on the bulletin boards, A-2
testified that he saw complainant, each day, walking up and down the
halls drinking coffee. He felt that complainant did not use his time
wisely and worked on matters that were not priorities. With regard to
his remarks concerning complainant's appearance, A-2 indicated that the
comments were not severe and were subsequently removed.
A-1 testified that he did not find A-2's remarks to be negative or
distasteful. On the contrary, he maintained that, after observing
complainant's appearance and viewing him at the information desk,
the remarks were reasonable and accurate. The Superintendent of the
Park testified that he observed the complainant with various pieces of
uniform that seemed "[i]n ill-fit, ill-shape, ill-care" and that he spoke
to A-1 about the matter. (ROI Exhibit 11, page 3). The preponderance
of the evidence indicates that the comments at issue are reflective
of A-2's evaluation of complainant's appearance and duty performance.
Although complainant may have found that A-2's comments were unfair,
unwarranted or unjustified, he provided no persuasive evidence that they
were motivated by a desire to discriminate against him because of his
age or perceived disability.
Reprisal Discrimination
A prima facie case of reprisal discrimination is established by showing
that: (1) complainant engaged in protected EEO related activity;
(2) the employer was aware of the protected activity; (3) complainant
was subsequently subjected to adverse treatment; and (4) the adverse
action followed the protected activity within such a period of time
that retaliatory motivation may be inferred. Manoharan v. Columbia
University College of Physicians and Surgeons, 842 F.2d 590, 593 (2d
Cir. 1988); Wrenn v. Gould, 808 F.2d 493, 500 (6th Cir. 1987); McKenna
v. Weinberger, 729 F.2d 783, 790, (D.C. Cir. 1984).
We find that complainant has established a prima facie case of reprisal
discrimination with respect to allegations 2(a) and 2(b). The record
indicates that, on September 7, 1993, complainant sought EEO counseling
regarding his age discrimination claim, i.e., allegations 1(a), 1(b),
and 1(c). There is no dispute that both A-1 and A-2, because of efforts
to informally resolve complainant's complaint in October 1993, were
aware of his EEO activity. Finally, we note that the events set forth in
allegations 2(a) and 2(b) occurred in February and May 1994, respectively.
Allegation 2(a)
Complainant testified that on May 6, 1994, he received a telephone
call from A-3, the North District Naturalist, offering him a seasonal
position in Colter Bay, Wyoming. Complainant, who lived closer to the
South District in Moose, Wyoming, maintained that the North District
position required him to commute 30 miles each way. According to
complainant, he was offered the position in retaliation for filing
his first EEO complaint. Complainant stated that there were perhaps
eight to ten vacancies in the South District that were available.
Complainant accused A-1 and A-2 of trying to make his job situation so
uncomfortable that he would not accept the position. (ROI Exhibit 6,
page 119). Unlike employees who voluntarily chose to live in Moose and
work in Colter Bay, complainant maintained that he was "essentially"
given no choice. Therefore, he accepted the position.
A-2 testified that as a result of complainant's first complaint, all
Summer seasonal applications were sent to Yellowstone National Park for
rating and ranking purposes. Pursuant to this new procedure, complainant
was ranked high enough to be offered a position. According to A-2,
he and A-3 contacted the applicants and made the actual offers in a
coordinated manner in order that one person would not receive offers from
both the South and North Districts. According to A-2, they felt it might
be beneficial for both complainant and the Park if he worked with a new
team of people and was given a change of "scenery." A-3, he maintained,
was happy to hire complainant. Finally, A-2 indicated that, in addition
to A-3, A-1 and the Assistant Supervisor were also part of the discussion.
A-1 testified that a decision was made that if complainant emerged
from the evaluation process at Yellowstone with a high enough ranking
to be offered a position, he would be offered a position in the North
District. According to A-1, the decision was made to give complainant
the opportunity to show what he could do outside of the South District
with a new supervisor, a new situation, new co-workers, and new resources.
(ROI Exhibit 8, page 27).
The Assistant Superintendent testified that she was told by A-1 and A-2
that A-3 wanted to offer complainant a position in order to give him a
fresh start. She denied complainant's assertion that he was somehow
coerced into taking the Colter Bay position. Complainant, according
to the Assistant Superintendent, was given the same choice that other
employees, who commute, are given.
Finally, A-3 testified that A-2 did not want to hire complainant because
of his concerns about his appearance and work productivity. A-3 stated
that he was willing to overlook these concerns because complainant was
outstanding in other areas. A-3, therefore, made sure that he kept one
slot available for complainant in case he was not hired by A-2. A-3 did
not entirely support the assertions of A-1 and A-2 that complainant was
offered a position in the North District in order to provide him with a
fresh start. A-3 was asked: "Were you involved in a meeting sometime in,
I guess, the Spring, Winter or Spring of 1994, where the desirability of
getting [complainant] out of this environment where he had some problems
into another environment for more or less a fresh start was discussed."
(ROI Exhibit 10, page 19). A-3 answered, in pertinent part, that
I don't think that was - - that came up in one of the meetings, but
that wasn't the purpose of the meeting. It came up. I felt that -
- you know, I was at first reluctant to hire because I thought there
was going to be a problem because of the complaint process. But, no,
I don't think that there was an effort to hire [complainant] in a
different environment that would maybe change his work performance.
Id.
We are not persuaded that complainant's previous EEO activity played
a role in the decision to offer him a position in the North District.
Although A-1 and A-2 may have exaggerated the extent to which a desire
to provide complainant "with a fresh start" played into the decision,
the fact remains that A-2 did not want to hire complainant because of
his appearance and perceived lack of productivity. A-3, however, did
want complainant to work for him.<3> We also note A-3's testimony, that
although A-1 and A-2 had concerns about complainant, neither of them tried
to encourage him not to hire complainant. (ROI Exhibit 10, pages 16-17).
Allegation 2(b)
According to complainant, a few days before his termination for the
1993 season, he asked A-2 if he planned to use him for the Fall 1993
season. A-2, according to complainant, told him no because of various
administrative concerns. He indicated, however, that it would be easier
to use him in the Spring. (ROI Exhibit 6, page 100). According to
complainant, A-2 indicated "that it would be great to have someone around
who knows the ropes at that time of the year. Subsequently, complainant
discovered that two seasonal employees were brought on to work in February
1994, the second half of the Winter season. According to complainant,
A-2 assured him that he would be contacted because he was experienced.
A-2 maintained that he never offered complainant a position for the second
half of the Winter season in 1994. He also denied telling complainant that
he would reserve a position for him. According to A-2, he merely told
complainant that he "would hold him in consideration for a position in the
Spring." (ROI Exhibit 7, page 90). Complainant, A-2 stated, misinterpreted
his comments and heard what he wanted to hear. A-2 acknowledged that he
might have told complainant that it would be good to have someone who
"knew the ropes," but he denied that this was an offer of a position
to complainant.
According to A-2, the two individuals who were hired, C-3 and C-4,
were selected because of their qualifications. Four individuals,
including complainant, were considered. A-2 indicated that he was
familiar with the work of complainant, C-3 and C-4, but not the work
of C-5. A-2 maintained that he considered "the overall performance,
motivation and initiative, known work habits, and the potential of
complainant, C-3 and C-4."<4> According to A-2, C-3 and C-4 were the
stronger candidates. A-2 acknowledged that C-3 and C-4 did not have as
much knowledge and experience as complainant, but he felt that they were
better workers than complainant. Specifically, A-2 stated that:
the two people I hired were absolutely capable of doing everything that
was asked of them that year plus had the added benefit of being hard
workers. And so I chose people that could get many additional projects
done, not just talk to visitors out front, because in the Winter there
is a lot more to it than that. I expect a lot [sic] of the Winter folks
and they do a lot [sic] of the behind the scenes work and I felt that
they could do that work better than [the complainant] could.
(ROI Exhibit 7, page 98).
A-1 testified that he was not involved in the selection decision, but that
he agreed with A-2's decision to select C-3 and C-4. A-1 did acknowledge
that, prior to the selections, he and A-2, and perhaps the Assistant
Superintendent or the Superintendent, discussed the possibility that
complainant would probably file a complaint alleging reprisal if he was
not offered a position. A-1, however, stressed that the selection was
based on performance. (ROI Exhibit 8, page 24).
After a careful review of the record, we find that although complainant
clearly had more years of experience than C-3 and C-4, years of experience
do not necessarily make an individual more qualified to meet the needs of
an organization or automatically make one candidate more qualified than
another candidate. The record indicates that complainant, C-3, C-4 and
C-5 were all considered by A-2 for the position. A-2 did not know C-5
and had serious misgivings about complainant because of his appearance
and past duty performance. The decisive factor in the selection turned
out to be A-2's belief that C-3 and C-4 would be better workers than
complainant. Consequently, we find that complainant failed to demonstrate
that the agency's legitimate, nondiscriminatory reason for not selecting
him was a pretext for discrimination based on reprisal.<5>
CONCLUSION
Based upon a review of the record, and the foregoing reasons, it is
the decision of the Commission that the agency discriminated against
complainant on the basis of his age when he was not selected for a Park
Ranger position, GS-025-05, for the 1993 Summer season. Therefore,
the agency's final decision is REVERSED, in part, and AFFIRMED, in part.
On remand, the agency shall comply with the Order below.
ORDER
1. Within thirty (30) calendar days of the date this decision becomes
final, the agency shall amend its records to reflect the fact that
complainant was promoted to the position of Park Ranger, GS-025-05 for
the 1993 Summer season, retroactive to the date that C-1 and C-2 were
placed in their positions. If C-1 and C-2 were placed in the positions
on different dates then the agency shall use the earliest date.
2. The agency shall determine the appropriate amount of back pay, at the
GS-05 level, for the above period. Complainant shall also be provided
all other benefits that he would have received had he been promoted to
the GS-05 level for the 1993 Summer season. 29 C.F.R. � 1614.501. The
complainant shall cooperate in the agency's efforts to compute the amount
of back pay owed and shall provide all relevant information requested
by the agency. If there is a dispute regarding the exact amounts owed
by the agency, the agency shall issue a check to the complainant for
the undisputed amount within thirty (30) calendar days of the date the
agency determines the amount it believes is owed. The complainant may
petition for enforcement or clarification of the amounts 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."
3. The agency is directed to conduct EEO training for both A-1 and
A-2. This training shall address management responsibilities with respect
to eliminating discrimination in the Federal workplace and all other
supervisory and managerial responsibilities under equal employment law.
4. The agency shall post, at its Grand Teton National Park Headquarters
in Moose, Wyoming, 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 within ten (10) calendar days of
the expiration of the posting period.
5. The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's calculation of back pay and other benefits due complainant,
including evidence that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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)(Supp. V 1993). If the
complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
___04-27-01_____________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
______________________________
Date
______________________________
1The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
2After complainant requested that his performance appraisal be reviewed by
the Assistant Superintendent, she directed that all remarks concerning his
appearance be removed. The Assistant Superintendent testified that "the
standard itself did not address appearance." (ROI Exhibit 9, page 9).
3According to the record, complainant received a "Superior" rating under
A-3's supervision.
4A-2 read this information from a memorandum that he prepared for A-1 on
February 17, 1994, the day after he learned of complainant's complaint.
(ROI Exhibit 7, page 94).
5Although the EEO counselor's report indicates that B-1 told complainant
that A-2 stated that he would not hire complainant because he was a
trouble maker, we note that complainant testified that "I don't think
[B-1] ever said that they told him I was a troublemaker." (ROI Exhibit
6, page 105). B-1, we note, also testified that "I was never given
a reason why [complainant] wasn't brought over [to] the Winter season
. . . ." (ROI Exhibit 12, page 40).