0720150026
08-04-2016
Shanti N.,1 Complainant, v. Loretta E. Lynch, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Shanti N.,1
Complainant,
v.
Loretta E. Lynch,
Attorney General,
Department of Justice
(Federal Bureau of Investigation),
Agency.
Appeal No. 0720150026
Hearing No. 480-2009-00414X
Agency No. FBI20076296
DECISION
Following its May 22, 2015, final order, the Agency filed a timely appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405(a). On appeal, the Agency requests that the Commission affirm its rejection of the back pay relief ordered by an Equal Employment Opportunity Commission Administrative Judge's (AJ) after finding discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. Additionally, Complainant filed a cross appeal on the Agency's final order. For the following reasons, the Commission MODIFIES the Agency's final order.
ISSUES PRESENTED
Whether the AJ erred: (1) in awarding back pay to Complainant, after finding that she was discriminated against on the basis of sex when she was suspended; (2) in finding that Complainant was not discriminated against on the bases of sex, disability, and in reprisal for protected EEO activity when a management official did not request or consider Complainant's input when conducting a Douglas Factors analysis; (3) in finding that Complainant was not discriminated against on the bases of sex, disability, and in reprisal for protected EEO activity when she was removed from the Agency; and (4) whether the Agency's back pay calculations should have accounted for a promotion to the GS-13 level.
BACKGROUND
Complainant worked as a Special Agent (SA) at the Agency's Las Vegas Field Office in Las Vegas, Nevada. On December 17, 2005, Complainant attended an office holiday party where she arrived intoxicated; performed some "dirty dancing;" allegedly exposed herself; and yelled obscenities. On March 27, 2006, the Agency's Internal Investigations Sections (IIS) initiated an investigation into Complainant based on her conduct at the party,2 and a complaint made by another SA (SA1) alleging Complainant's lack of candor under oath.3 On June 20, 2006, the IIS referred the matter to the Office of Professional Responsibility (OPR), and on October 10, 2006, the OPR proposing official (PO) (male) issued Complainant a notice of proposed removal for the lack of candor under oath charge, and a 60-day suspension for the misconduct at the holiday party.
On October 8, 2006, while on personal travel in Austin, Texas, Complainant was arrested for public intoxication, resisting arrest, and criminal mischief. During her arrest, the Austin Police Department (APD) police officers struggled to place handcuffs on Complainant, and had to take her to the ground. After being placed in the police vehicle, Complainant kicked the window out of the police vehicle, and stated to the arresting officers that they were violating her civil rights and, "I am gonna tell everyone you raped me." The entire incident, including Complainant's interview at the police station the next morning, was captured on video. The incident was reported to the Agency's headquarters as part of routine information sharing between the Agency and the APD. On October 24, 2006, the OPR initiated a second investigation into Complainant because of the Austin incident.
On December 14, 2006, Complainant submitted a written response to the proposed removal, and on January 10, 2007, she made an oral presentation to the Assistant Director of OPR (AD1) (female, no disability, unknown EEO activity). On February 8, 2007, the AD1 notified Complainant of her removal. The AD1 determined that the evidence supported the lack of candor under oath charge, but did not address Complainant's holiday party conduct in her decision. Complainant appealed her removal before the Agency's Disciplinary Review Board (DRB).
On May 21, 2007, the DRB met to discuss Complainant's appeal of her removal. The Assistant Director of the Human Resources Division (AD2) (male, no disability, unknown EEO activity) recommended that the video of Complainant's arrest incident be considered as part of the analysis for the lack of candor under oath charge. The AD2 also suggested having Complainant submit to a polygraph test. When the AD2 offered Complainant the polygraph exam, she declined. On July 27, 2007, the DRB met again and decided: (1) not to review the video footage of the Austin incident in support of the lack of candor charge; (2) the evidence did not sustain the lack of candor under oath charge; and (3) reversed Complainant's removal, and issued a 15-day suspension for her misconduct at the holiday party.
On July 30, 2007, a Supervisory Special Agent requested an investigation into the Austin incident.4 On August 15, 2007, the AD2 notified Complainant that she was indefinitely suspended, without pay, pending the outcome of the second investigation. In November 2007, Complainant learned that the Assistant Special Agent in Charge (ASAC) (male, unknown disability, unknown EEO activity) was conducting a Douglas Factors analysis regarding her proposed removal,5 and submitted documentation for him to consider.
In early January 2008, the PO issued Complainant a notice of proposed removal based on the Austin incident. On May 2, 2008, Complainant made an oral presentation to the AD1 in response to the second proposed removal. On May 15, 2008, the AD1 issued Complainant the notice of removal based on her misconduct and arrest in Austin. Complainant appealed her second removal to the DRB, and on September 29, 2008, the DRB upheld Complainant's removal. The DRB, chaired by the Deputy Assistant Director of the Human Resources Division (DAD) (male, unknown disability, unknown EEO activity), considered Complainant's alcohol dependency as a mitigating factor, but found that the severity of the aggravating factors, and her position as an SA outweighed the mitigating factor.
Complainant initiated EEO counseling on February 12, 2007, and filed her formal EEO complaint on March 5, 2007. Complainant alleged that the Agency discriminated against her on the basis of sex (female) when she was removed on February 8, 2007. Complainant amended her EEO complaint multiple times, and the Agency accepted for investigation the additional claims that the Agency discriminated against her on the bases of sex, disability (mental), and in reprisal for her instant EEO complaint when:
1. After July 31, 2007, despite being reinstated, she was not allowed to return to work, did not receive back pay, and did not have her medical benefits restored;
2. On August 15, 2007, she was indefinitely suspended, pending the outcome of the investigation into the Austin incident;
3. On August 20, 2007, the ASAC informed her that she was indefinitely suspended, pending the outcome of the investigation into the Austin incident;
4. The ASAC did not take into consideration the information Complainant provided on November 18, 2007, when conducting the Douglas Factors analysis;
5. The ASAC did not ask Complainant to provide any information when preparing to conduct the Douglas Factors analysis;
6. On February 25, 2008, the IRS seized $292.68 from her income tax refund for six hours of annual leave she earned;
7. On May 20, 2008, she was removed from the Agency;
8. On June 27, 2008, she received two notices from the National Finance Center (NFC) for overpaid annual leave and for health insurance premiums; and
9. On October 6, 2008, she was notified that the DRB sustained her removal.
At the conclusion of the EEO investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing on March 13, 2008. The EEOC reassigned Complainant's case to multiple AJs; and various motions were filed and orders issued until a five-day hearing was conducted, starting on March 14, 2013.6 On August 25, 2014, the AJ issued a Decision on Liability.
In regards to Complainant's disability discrimination claim, the AJ found that Complainant had not informed the Agency of her alcoholism until January 10, 2007, and that the Agency was not required to excuse Complainant's past misconduct once they were notified of Complainant's disability. Additionally, the AJ determined that Complainant could not prevail on her disability discrimination claim because she presented no evidence of disparate treatment based on disability. For Complainant's reprisal claim, the AJ found that Complainant had not shown that the Agency officials knew of her EEO activity, or that there was a nexus between the activity and their actions. Accordingly, the AJ determined that Complainant did not establish by a preponderance of the evidence that the Agency discriminated against her on the bases of disability or reprisal.
In support of Complainant's claim of sex discrimination in her first removal, Complainant provided approximately two dozen male comparators who were involved in alcohol related misconduct, but allegedly subject to less severe discipline. She also alleged pretext for discrimination stating that the Agency officials' testimonies "lacked credence." The AJ found that even though the DRB later reversed the removal, the AD1's decision to remove Complainant was based on her lack of candor under oath, and that Complainant had not shown pretext for discrimination based on sex.
The AJ found that the Agency discriminated against Complainant on the basis of sex when it suspended her from August 15, 2007, through May 20, 2008, without pay. In the finding of discrimination, the AJ determined that the preponderance of the evidence showed that Complainant was subject to unlawful disparate treatment based on her sex because:
1. Unlike the other allegations of discrimination, the AD2 was the only responsible management official for the decision to indefinitely suspend her;
2. The AD2 based his decision to suspend her on her videotaped conduct, but ignored her retraction of the threat to file a rape charge to the APD officers less than 15 hours later;
3. The AD2 did not base the suspension on any other factor, such as her security status and;
4. There was no effort by the Agency to determine if the APD was concerned about the realistic threat of an allegation of police misconduct.
For claims 4 and 5, Complainant alleged that she was discriminated against on the basis of sex when the ASAC failed to take into consideration her input on mitigating factors. The AJ noted that Complainant sent the ASAC a letter, and that he forwarded her letter with his memo, in which he stated that Complainant's intoxication during the time of her arrest should be taken into consideration. Additionally, the AJ found that male comparators did not receive leniency because of alcoholism after the fact of unacceptable behavior.
In regards to claims 7 and 9, the AJ found that Complainant had not established a prima facie case of discrimination based on sex because none of the named comparators were similarly situated. Some of the distinguishing factors were differing seniority levels; lack of previous offenses and discipline; and differing deciding officials. As such, the AJ found that the Agency did not discriminate against Complainant on the basis of her sex when it issued a decision to remove her the second time, and when the DRB upheld her removal.
On October 2, 2014, the AJ held a hearing on the issue of damages; and the AJ also asked the parties to submit written briefs solely regarding damages for the period of the indefinite suspension from August 15, 2007, through May 20, 2008. On April 7, 2015, the AJ issued a Final Decision on Liability and Damages. The AJ awarded the following relief:
1. Back pay as provided by 29 CFR �1614.501 for the period of indefinite suspension at the GS-12 level;
2. $648.34 in pecuniary damages;
3. $35,000 in non-pecuniary damages;
4. $2,850 in attorney's fees; and
5. Posting of a notice regarding the finding of sex discrimination.
The AJ rejected Complainant's argument that she should be awarded back pay at the GS-13 level because Complainant had not met her burden of establishing that she would have been granted a promotion, absent the discriminatory suspension. While Complainant argued that she would have been promoted to the GS-13 level at her five year anniversary on July 28, 2007, the AJ found that it was speculative to conclude that Complainant would have received the promotion, given that her second investigation was still pending at the time, which would have been a legitimate consideration in any decision concerning whether to promote Complainant.
On May 22, 2015, the Agency issued its final order accepting the AJ's finding that Complainant was discriminated against when the Agency indefinitely suspended her; and the AJ's award of compensatory damages and attorneys' fees. However, the Agency did not accept the award of back pay, and filed an appeal. The Agency submitted its brief in support of its appeal on July 1, 2015.7
Complainant filed an appeal on the Agency's final order on June 19, 2015. Complainant submitted a brief in support of her appeal on July 17, 2015, and on August 28, 2015, the Agency filed an opposition brief to Complainant's appeal.
CONTENTIONS ON APPEAL
On appeal, the Agency argues that the AJ erred in awarding Complainant full back pay for the period of the indefinite suspension because the evidence shows that Complainant was working full-time during this period, and earned a higher annual salary than her SA position. The Agency contends that Complainant testified that she was fully employed during the time of her suspension, and that the AJ erred when she ignored that fact, and awarded Complainant full back pay for the time of her indefinite suspension.
In her appeal, Complainant argues that the AJ erred in finding that she was not entitled to back pay at the GS-13 level. Complainant alleges that the AJ erred in finding that she was serving her 15-day suspension at the time of her five-year anniversary; the DAD's testimony supports her claim that she would have been promoted, absent the discriminatory suspension; and Complainant presented comparator evidence showing male SAs received promotions, despite their disciplinary actions.
Complainant also appeals the final order adoption of the AJ's finding of no discrimination based on sex, disability, and in reprisal for protected EEO activity for claims 4, 5, 7, and 9. She alleges that the AJ erred in failing to address the ASAC's bias against her.
Complainant also raises for the first time on appeal that:
1. It is ambiguous if the AJ included back pay after her first removal was reversed in her back pay award, and requests clarification;
2. There is derogatory information in her credit report;
3. The Agency breached its duty to her as a pro se complainant when it did not fully respond to her discovery request;
4. The Agency solicited misleading testimony from the AD1, and failed to produce an Office of Inspector General (OIG) report regarding the Agency's disciplinary system. Complainant argues that the 2009 OIG report shows inconsistencies with the AD1's testimony; and
5. There was ex parte communication between the AD1's unit and the AD2's unit.
Complainant also submitted an OIG report on sexual harassment; Agency statistical data; and a decision on another sex discrimination case.
STANDARD OF REVIEW
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. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (Aug. 5, 2015).
ANALYSIS AND FINDINGS
As an initial matter, we note that Complainant raises new arguments, and submitted additional evidence for the first time on appeal. We note that the Commission cannot address an issue raised for the first time on appeal, and as a general rule, no new evidence will be considered on appeal absent an affirmative showing that the evidence was not reasonably available prior to or during the investigation or during the hearing process. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 9, � VI.A.3 (Aug. 5, 2015). We find that Complainant has not shown that this evidence was not reasonably available prior to or during the processing of her EEO complaint. As such, we will not be addressing her additional issues, or considering the new evidence submitted by Complainant in this decision.
However, with respect to Complainant's request for clarification on the issue of back pay after her first removal was reversed, we note that the AJ did not include this back pay as part of the remedy in her decision. The AJ did not find that Complainant's first removal was discriminatory, and accordingly, she did not award back pay on this matter.
Additionally, we find that the Agency's opposition brief is untimely. The Commission's regulations provide that "any statement or brief in opposition to an appeal must be submitted to the Commission ... within 30 days of receipt of the statement or brief supporting the appeal, or, if no statement or brief supporting the appeal is filed, within 60 days of receipt of the appeal." 29 C.F.R. �1614.403(f). In this case, Complainant submitted her brief in support of her appeal on July 15, 2015. Assuming that mail delivery took five days, the Agency would have received the brief by July 22, 2015, and its deadline to submit its opposition brief was August 21, 2015. The Agency sent its brief on August 28, 2015, and as such, we will not consider the Agency's opposition brief.
Back Pay
Based on the finding of discrimination, Complainant is entitled to full relief in the form of back pay and benefits as authorized by Title VII of the Civil Rights Act of 1964, as amended. 42 U.S.C. �2000e et seq. Awards of back pay in Title VII cases are governed by 5 C.F.R. 550.801 et seq. See 29 C.F.R. 1614.501(b)-(c). The purpose of a back pay award is to restore to Complainant the income she would have otherwise earned but for the discrimination. See Albemarle Paper Co. v. Moody, 442 U.S. 405, 418-19 (1975); Davis v. United States Postal Service, EEOC Petition No. 04900010 (November 29, 1990).
The applicable regulations provide that amounts earnable with reasonable diligence by the person discriminated against shall operate to reduce the back pay otherwise allowable. Thus, Complainant has a duty under Title VII to mitigate or lessen damages by making a "reasonable good faith effort to find other employment." This means that Complainant was required to seek a substantially equivalent position, meaning a position that afforded virtually identical compensation, job responsibilities, working conditions, status and promotional opportunities as the position she was discriminatorily denied. See Weaver v. Casa Gallardo, Inc., 922 F 2d 1515 (11th Cir. 1991); Todd v. United States Postal Service, EEOC Petition No. 04920007 (August 27, 1992).
We note that neither party challenges the AJ's finding of discrimination for Complainant's suspension, nor that the issue on appeal is related to the back pay awarded for the time of the suspension. We find that the Agency has not shown that the AJ erred when awarding back pay for the discriminatory suspension. As a matter of law, Complainant is entitled to an award of back pay for the time of her suspension to make her whole. The Agency argues that Complainant is not entitled to back pay because she earned more from her outside job than she would have working for the Agency during the time of her suspension. We REVERSE the Agency's final order with respect to its decision to not implement the AJ's award concerning back pay. The amount of back pay, if any, Complainant is entitled to shall be determined as set forth in the Order below. As stated in the Order below, the parties are to calculate the proper amount of back pay owed to Complainant, taking into account any offset for her outside earnings during the time of the suspension.
With regard to Complainant's contention that she should be awarded back pay at the GS-13 level, we note that, as a general rule, Complainant would be entitled to receive any benefit that she would have received, absent the discriminatory suspension. The AJ determined, however, that Complainant was not entitled to a promotion to the GS-13 level because she had not shown evidence that her promotion was more than mere speculation, and we find that there is substantial evidence in the record to support the AJ's finding. While Complainant argues that the DAD's testimony supports her promotion, we find that it does not. At the hearing, Complainant asked the DAD hypothetical questions about her promotion, assuming that there were "no unusual factors." While the DAD generally agreed that an employee who was performing at a satisfactory level would have been promoted, he testified that Complainant had "a unique situation." Additionally, Complainant asserted that others with a disciplinary record were promoted, but did not provide any evidence to support her claim. Accordingly, we find that there is substantial evidence in the record to support the AJ's conclusion that Complainant did not establish that it was likely she would have been promoted, absent the discriminatory suspension.
Disparate Treatment
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, she must first 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. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
Assuming, arguendo, that Complainant established a prima facie case of discrimination based on sex, disability, and in reprisal for prior EEO activity, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. In regards to claims 4 and 5, the ASAC testified that he read the statement that Complainant faxed to him in November 2007 "a couple of times." He also stated that regardless of Complainant's sobriety, he determined that Complainant was no longer fit to be an SA because he lost trust in her after the Austin incident.
With respect to claims 7 and 9, the AD1 testified that she removed Complainant from the Agency because she decided that Complainant's conduct was deeply disturbing and showed disrespect for fellow law enforcement officials; Complainant's career at the Agency had been relatively brief and in that brief time, Complainant had demonstrated an inability to conform her conduct to the expectations of the Agency; Complainant had shown a lack of integrity; and the Agency had lost confidence in her. While the AD1 commended Complainant for her efforts in seeking assistance for alcohol dependency, she had lost confidence in Complainant's ability to be rehabilitated because Complainant did not take responsibility for her actions, and blamed others. Additionally, the DAD testified that the four voting members of the DRB unanimously voted to uphold Complainant's removal because the ten aggravating factors far outweighed the mitigating factor of Complainant's alcohol treatment, which warranted Complainant's dismissal.8
Complainant has not presented any evidence showing that the Agency's proffered reasons were pretext for discrimination. While Complainant argues that the AJ erred because the ASAC displayed "obvious bias," we find that Complainant makes bare assertions and conclusions that the ASAC was biased, but does not provide any evidence to support her assertion. Accordingly, we find that substantial evidence in the record supports the finding that the Agency did not discriminate against Complainant on bases of sex, disability, and in reprisal for protected EEO activity when the ASAC did not consider her input for his Douglas Factors analysis; the ASAC did not request input from Complainant for his Douglas Factors analysis; the AD1 removed Complainant from the Agency; and the DRB upheld Complainant's removal from the Agency.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final order, which rejected the AJ's award of back pay, and ORDER the Agency to take action, in accordance with the order below. However, we AFFIRM the Agency's final order's adoption of the AJ's finding that Complainant had not shown that she was discriminated against on the bases of sex, disability, and in reprisal for EEO activity when: the ASAC failed to consider Complainant's statement submitted on November 17, 2007; the ASAC conducted a Douglas Factors analysis without asking Complainant for input and on December 3, 2007, he notified Complainant that his analysis supported her removal; the Agency removed her on May 20, 2008; and the DRB upheld her removal on September 29, 2008.
ORDER
1. If it has not already done so, the Agency shall provide Complainant $648.34 in pecuniary damages, $35,000 in non-pecuniary compensatory damages, and $2,850 in attorney's within one-hundred and twenty (120) calendar days of the date of this decision.
2. 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 within one-hundred and twenty (120) calendar days. Back pay and benefits shall be calculated from August 15, 2007, through May 20, 2008. 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. Complainant may petition the Commission for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer referenced in the statement entitled "Implementation of the Commission's Decision."
3. After the relevant back pay calculations have been made, the Agency shall request that Complainant submit her claim for compensation for any additional federal and state income tax liability. The Agency shall afford Complainant sixty (60) calendar days to submit her claim and supporting documents. The burden of proof to establish the amount of additional tax liability, if any, is on Complainant. The calculation of additional tax liability must be based on the taxes Complainant would have paid had she received the back pay in the form of regular salary during the back pay period, versus the additional taxes she paid due to receiving the back pay lump sum award. Thereafter, the Agency shall issue a decision on this matter and any amount of proven additional tax liability within one hundred and twenty (120) calendar days of the date this decision becomes final in accordance with 29 C.F.R. � 1614.110(b).
4. The Agency shall provide eight (8) hours of EEO training to the responsible management officials regarding their responsibilities under EEO laws within one hundred and twenty (120) calendar days of the date of this decision. The Agency shall take appropriate steps to ensure that like violations do not occur in the future.
5. The Agency shall consider taking appropriate disciplinary action against the responsible management officials. 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 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 the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure dates.
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.
POSTING ORDER (G0914)
The Agency is ordered to post at its Las Vegas Field Office facility in Las Vegas, Nevada copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 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 10 calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), 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 (K0610)
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 77960, Washington, DC 20013. 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 (M0416)
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), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (T0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
__8/4/16________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 The misconduct charges pertaining to Complainant's conduct at the holiday party were based on Agency Offense Code 4.6 - Indecent/Lascivious Act, and Agency Offense Code 5.21 - Unprofessional conduct.
3 In December 2005, Complainant sent an anonymous letter containing the allegations that SA1 engaged in criminal conduct. During the investigation, Complainant provided sworn statements to the investigators, reiterating the claims. SA1 denied the allegations, and witnesses were unable to corroborate Complainant's claims.
4 The initial investigation was administratively closed when Complainant was terminated from the Agency.
5 In Douglas v. Veterans Administration, 5 M.S.P.B. 313, 5 M.S.P.R. 280 (1981), the Merit Systems Protection Board identified 12 factors to consider when determining the appropriateness of a proposed penalty.
6 Complainant's case was also delayed by her bankruptcy proceedings because the trustee needed to determine if the claims of the instant case were considered property subject to the claims of Complainant's creditors.
7 The Agency obtained an extension to file its brief in support of its appeal by July 1, 2015.
8 The record does not contain hearing testimony from the four voting members of the DRB.
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