0720090027
04-15-2010
Brenda L. McNeese-Ards, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Brenda L. McNeese-Ards,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0720090027
Hearing No. 460-2008-00097X
Agency No. 2003-0580-2007100374
DECISION
Following its February 4, 2009 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
an EEOC Administrative Judge's (AJ) finding of discrimination in violation
of Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. � 2000e et seq. The agency also requests that the Commission
affirm its rejection of the relief ordered by the AJ. For the following
reasons, the Commission REVERSES the agency's final order, AFFIRMS the
AJ's finding of discrimination, and MODIFIES the relief ordered.
ISSUE PRESENTED
The issue on appeal is whether there is substantial evidence in the
record to support the AJ's finding that the agency discriminated
against complainant on the basis of reprisal for prior protected EEO
activity under Title VII when, on or about November 28, 2006, the agency
reassigned complainant, changed her title, and removed three of eight
programs complainant was responsible for managing.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Grade Level III, Step 14, Head Nurse in Extended Care Line at the
agency's Michael E. DeBakey VA Medical Center in Houston, Texas.
Complainant commenced working for the agency in 2002 when she was
appointed the Acting Community Care Program Director. In December
2003, complainant was appointed Home and Community Health Care Program
Director for the Extended Care Line (ECL), and was hoping eventually to
be promoted to a Grade Level IV Nurse (Nurse IV). This promotion was
dependent on the "scope and complexity" of the duties and responsibilities
of complainant's position being performed at a Nurse IV grade level.
A critical requirement for consideration of promotion to Nurse IV was
obtaining concurrence of the Chief Nurse.
In June 2004, ECL Executive 1, then complainant's immediate supervisor,
recommended complainant for promotion to Nurse IV. Chief Nurse 1, who
was then complainant's second-line supervisor, did not concur with the
recommendation to promote complainant, citing her determination that
complainant did not meet the "scope and complexity" for the Nurse IV
promotion. Consequently, on or about August 2005, the Nurse Professional
Standards Board denied complainant's promotion to Nurse IV.
Frustrated with management's unwillingness to promote her to Nurse IV,
on or about November 7, 2006, complainant contacted an EEO counselor.
Complainant was initially interviewed by an EEO counselor on November 9,
2006. The counselor contacted ECL Executive 2, who was complainant's
first-line supervisor except for an 18-month period when ECL Executive
2 was on military duty.
When questioned by the EEO counselor about complainant's allegation,
ECL Executive 2 denied discriminating against complainant in any manner.
ECL Executive 2 specifically denied retaliating against complainant
for having participated in "mediation." ECL Executive 2 asserted that
complainant was not promoted to Nurse IV by the Nurse Professional
Standards Board because the duties complainant was performing at that
time did not meet the required "scope and complexity."
Following informal EEO counseling, complainant sought a meeting with
ECL Executive 2 and Chief Nurse 2 to review her job proficiency and the
functional statement of her current position as Home and Community Care
Program Director, for Level IV "scope and complexity." The meeting was
held on or about November 28, 2006. When the meeting began, ECL Executive
2 announced that she was reassigning and downgrading complainant from
directly reporting to her. Complainant was also informed that she was
being relieved of three of the eight programs for which she was currently
responsible. Chief Nurse 2 abruptly terminated the meeting, stating there
was not any reason to meet because based on these changes complainant
no longer met the required scope and complexity. In a later "town hall
meeting," ECL Executive 2 informed complainant's staff that she was no
longer the Program Director, but was simply a "Head Nurse." This turn
of events shocked and humiliated complainant, and she subsequently lapsed
into a deep depression and sought professional counseling.
On January 18, 2007, complainant filed an EEO complaint alleging that
she was discriminated against on the bases of color (light brown) and
reprisal for prior protected EEO activity under Title VII when, on or
about November 28, 2006, the agency reassigned complainant, changed her
title and relieved complainant of three of the eight programs she was
responsible for managing.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request a
hearing before an AJ. Complainant timely requested a hearing, which was
held August 29, 2008. On December 22, 2008, the AJ issued a decision in
complainant's favor. The AJ awarded complainant relief including $8,000
in non-pecuniary compensatory damages, $6239 in pecuniary compensatory
damages, and $17,210 in attorney's fees and costs.
The agency subsequently issued a final order rejecting the AJ's finding
that complainant proved that she was subjected to discrimination on the
basis of reprisal. The instant appeal followed.
CONTENTIONS ON APPEAL
On appeal, the agency argues that the AJ's findings are not supported
by substantial evidence in the record. The agency asserts that the AJ
erred in his determination of the factual predicate for a prima facie
case of reprisal. The agency contends that the record fails to establish
the exact date in November of 2006 that ECL Executive 2 became aware that
complainant had filed an informal EEO complaint. The agency argues that
this failure prohibits the AJ from making a finding of discrimination
based on reprisal in the instant case.
The agency further contends that without ascertaining the exact date
of the meeting in which complainant's duties and title were changed,
a decision can not be made as to whether the actions taken at this
meeting were taken in reprisal against complainant for engaging in
prior protected EEO activity. The agency states that the record is
lacking in sound documentary evidence which establishes the date of
this meeting. Stressing the importance of the ascertaining the exact
date of this meeting, contending that nearly all subsequent actions of
which complainant alleges are discriminatory are logical consequences
of the actions which took place at this meeting, the agency submits that
if the meeting took place before November 20 or 21, 2006, complainant's
supervisors would not have known of complainant's contact with the EEO
counselor, thus making it impossible for a prima facie case of reprisal
to exist.
Lastly, the agency contends that prior, to the informal complaint
which complainant filed in November of 2006, complainant was not
participating in any protected activity EEO activity under Title VII.
The agency argues that the AJ's finding that there was such activity, is
an error of law and not supported by substantial evidence in the record.
We note that the agency did not address the propriety of the compensatory
damages award nor the attorney's fees award.
In response to the agency's appeal, complainant requests that the
Commission affirm the AJ's finding of discrimination because the
agency failed to establish that the AJ relied on inaccurate documents
in the investigative file or any alleged missing documents to render
his decision. Complainant notes that the AJ identified the specific
documents he relied on in rendering his decision, and determined these
documents to be "adequate for [their] intended purpose."
Additionally, complainant requests that the Commission order the
restoration of the three programs for which she had previously been
responsible, restoration of her title of "Home and Community Care Program
Director," and restoration of her alignment in the chain of command.
Complainant argues that such restoration would make her whole by placing
her back in the position for potential of promotion to Nurse IV.
Complainant also requested an increase in the award of compensatory
damages from $8,000 to $50,000 and attorneys fees and costs associated
with her reply and cross-appeal.
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. 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, � VI.B. (November 9, 1999).
To prevail in a disparate treatment claim, complainant must satisfy the
three-part evidentiary scheme fashioned by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially
establish a prima facie case by demonstrating that he was subjected to
an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Construction Co. v. Waters, 438
U.S. 567, 576 (1978). Proof of a prima facie case will vary depending
on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804
n. 14. The burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail,
complainant must prove, by a preponderance of the evidence, that the
agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993).
Complainant can establish a prima facie case of retaliation by presenting
facts that, if unexplained, reasonably give rise to an inference
of discrimination. Shapiro v. Social Security Administration, EEOC
Request No. 05960403 (December 6, 1996) (citing McDonnell Douglas, 411
U.S. at 802). Specifically, in a reprisal claim, and in accordance with
the burdens set forth in McDonnell Douglas, complainant may establish
a prima facie case of reprisal by showing that: (1) she engaged in
a protected activity; (2) her employer was aware of the protected
activity; (3) subsequently, she was subjected to adverse treatment by
his employer; and (4) a nexus exists between the protected activity
and the adverse treatment. Whitmire v. Department of the Air Force,
EEOC Appeal No. 01A00340 (September 25, 2000).
The Commission has stated that adverse actions need not qualify as
"ultimate employment actions" or materially affect the terms and
conditions of employment to constitute retaliation. EEOC Compliance
Manual Section 8: Retaliation, No. 915.003, at 8-15 (May 20, 1998);
see Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006)
(finding that the anti-retaliation provision protects individuals from a
retaliatory action that a reasonable person would have found "materially
adverse," which in the retaliation context means that the action might
have deterred a reasonable person from opposing discrimination or
participating in the EEO process).
The agency contends that prior to the filing of the November 2006 informal
complaint, complainant was not engaged in protected EEO activity, and thus
cannot establish a prima facie case of reprisal. We find it unnecessary
to address the time period prior to November 2006 because it is clear
from his decision that the AJ based his finding of discrimination for
reprisal on the fact that complainant made contact with an EEO counselor
in early November 2006. Although the AJ notes that ECL Executive 2
was aware of complainant's earlier vocal objection to what she viewed
as a discriminatory selection process for a subordinate position,
he explicitly states in his decision that it is unclear to what extent
complainant's earlier vocal objection had on any subsequent retaliation.
See AJ Decision, p. 9.
The evidence in the record also clearly establishes that the agency was
aware that complainant was engaging in or had engaged in protected EEO
activity and that she was subsequently subjected to adverse treatment by
the agency around the time in question. At the hearing, ECL Executive 2
confirmed that she was aware that complainant had filed some sort of EEO
complaint around the time in question. Hearing Transcript (HT-1 or 2),
p. 137-39. She further confirmed that, around this time, approximately
on November 28, 2006, she met with complainant and Chief Nurse 2, and
changes were made to complainant's title, duties, and responsibilities.
This date falls after any of the dates identified by the agency as
the earliest possible time they would have known about complainant's
engaging in EEO activity. See Agency's Memorandum for the Record,
p. 4-5. Further, complainant testified without objection that about
ten days after she filed a formal complaint, ECL Executive 2 issued
a memo and organizational chart officially reflecting the change in
complainant's duties and title. HT-1, p. 41. We find that this evidence
is sufficient to establish a nexus between the protected activity and the
adverse treatment. After a careful review of the record, we find there
is substantial evidence to support the AJ's finding that complainant
established a prima facie case of reprisal.
We further find that there is substantial evidence in the record
to support the AJ's finding that all of the agency's actions, viewed
together, establish evidence of animus and bias that ECL Executive 2 had
against complainant for having engaged in protected EEO activity. We find
that the AJ properly determined that the agency's proffered legitimate,
non-discriminatory reason for its actions did not hold up; and that
complainant had satisfied her burden of proving, by a preponderance of
the evidence, that the agency's explanation was pretextual. We find that
the AJ's ultimate finding of discrimination on the basis of reprisal is
supported by substantial evidence.
Complainant's Cross-appeal
In addition to requesting that the Commission affirm the AJ's decision
finding of discrimination on the basis of reprisal, complainant
requests that we order restoration of the three programs for which she
had previously been responsible, and her title of "Home and Community
Care Program Director." Complainant also seeks a more "reasonable"
compensatory damages award of $50,000, as well as attorney's fees and
costs associated with the reply and cross-appeal.
When discrimination is found, the agency must provide the complainant with
an equitable remedy that constitutes full, make-whole relief to restore
her as nearly as possible to the position she would have occupied absent
the discrimination. 29 C.F.R. � 1614.501(a)-(c); Reasor v. U.S. Postal
Service, EEOC Appeal No. 0720070004 (January 6, 2009) (citing Franks
v. Bowman Transportation Co., 424 U.S. 747 (1976); Albemarle Paper
Co. v. Moody, 422 U.S. 405, 418-19 (1975); Adesanya v. Postal Service,
EEOC Appeal No. 01933395 (July 21, 1994)). We acknowledge that the
precise measurement cannot always be used to remedy the wrong inflicted,
nonetheless, the burden of limiting the remedy rests with the agency.
Id. (citing Davis v. U.S. Postal Service, EEOC Petition No. 04900010
(November 29, 1990)).
In his decision, the AJ declined to order the agency to reclassify
complainant's grade level III position to a grade level IV position,
particularly since it had been two years since the reorganization
occurred. The AJ reasoned that management has the right to determine
its own organization, the methods and means by which the agency
employees are to perform work, and the assignment of various personnel.
See AJ Decision, p. 11. We find that complainant is not asking
for a reclassification of her grade level from level III to level
IV. Complainant is seeking a restoration of the opportunity to be in
a position to qualify for a Level IV Nurse position. The AJ found,
and we concur, that there is substantial evidence in the record to
sustain complainant's contention that the agency retaliated against
her for engaging in protected EEO activity when it relieved her of
oversight of three programs and changed her title. See AJ Decision,
p. 10. This finding makes restoration of complainant's title and duties
appropriate. In accordance with this decision and the order herein,
the agency is ordered to restore to complainant the duties and title she
held prior to the November 2006 meeting. In the event such restoration
is impossible or impracticable at this time, the agency is ordered
to provide complainant with a substantially equivalent position. The
position shall contain comparable duties and title which would enable
her to qualify for the level IV grade promotion.
Turning to the matter of compensatory damages, we note that 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. Enforcement Guidance:
Compensatory and Punitive Damages Available Under Section 102 of
the Civil Rights Act of 1991 (Enforcement Guidance), EEOC Notice
No. 915.002, at 8 (July 14, 1992). Objective evidence of compensatory
damages can include statements from the complainant concerning his or
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
non-pecuniary losses that are incurred as a result of the discriminatory
conduct. Statements from others, including family members, friends, health
care providers, or 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. 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)).
Evidence from a health care provider or other expert is not a prerequisite
for recovery of compensatory damages for emotional harm. Complainant's own
testimony, along with the circumstances of a particular case, can suffice
to sustain her burden in this regard. The more inherently degrading or
humiliating the agency's action is, the more reasonable it is to infer
that a person would suffer humiliation or distress from that action. The
absence of supporting evidence, however, may affect the amount of damages
appropriate in specific cases. See Banks v. United States Postal Service,
EEOC Appeal No. 07A20037 (September 29, 2003) (citing Lawrence v. United
States Postal Service, EEOC Appeal No. 01952288 (Apr. 18, 1996)).
An award of non-pecuniary compensatory damages should reflect the extent
to which the agency's discriminatory action directly or proximately caused
the harm as well as the extent to which other factors also caused the
harm. Johnson v. Department of the Interior, EEOC Appeal No. 01961812
(June 18, 1998). It is the complainant's burden to provide objective
evidence in support of her claim and proof linking the damages to the
alleged discrimination. Papas v. United States Postal Service, EEOC Appeal
No. 01930547 (Mar. 17, 1994); Mims v. Department of the Navy, EEOC Appeal
No. 01933956 (Nov. 24, 1993). The Commission recognizes that not all
harms are amenable to a precise quantification; the burden of limiting
the remedy, however, rests with the employer. Chow v. Department of the
Army, EEOC Appeal No. 01981308 (Feb. 12, 2001). Moreover, the amount of
an award should not be "monstrously excessive" standing alone, should
not be the product of passion or prejudice, and should be consistent
with the amount awarded in similar cases. Cygnar v. Chicago, 865 F.2d
827, 848 (7th Cir. 1989); EEOC v. AIC Security Investigations, Ltd.,
823 F. Supp. 571, 574 (N.D. Ill. 1993).
The record reveals that complainant suffered from depression,
loss of sleep, severe emotional distress, and anxiety as a result
of the retaliatory conduct of the agency. See HT-2, p. 15-17.
Both complainant's testimony and supporting therapy records and bills
demonstrate the extent of her mental and emotional suffering. See HT-2,
p. 9-10. Complainant needed 77 therapy sessions to assist her in managing
her diagnosis of major depression. See HT-2, p. 10 and 22. At the
hearing, several witnesses testified that complainant became worried,
withdrawn, depressed, and fretful, and that her emotional well being
has deteriorated considerably and taken a toll on her enjoyment of life.
See HT-2, p. 15-20.
The Commission has awarded varying amounts of non-pecuniary compensatory
damages for emotional harm, depending upon the extent and duration of
the harm suffered. See Bahaudin v. Department of the Army, EEOC Appeal
No. 01993594 (Sept. 13, 2000) ($85,000 awarded where complainant,
diagnosed with Major Depression, produced evidence indicating that the
agency's discriminatory actions caused him to, among other things,
become very irritable and distant; wake up at night and make sudden
jerking movements; not want to go to work; just lie in bed when he was
not working; neglect his home duties; and not eat); McCann v. Department
of the Air Force, EEOC Appeal No. 01971851 (Oct. 23, 1998) ($75,000
awarded where complainant's testimony and several reports supported a
finding that the agency's discrimination reawakened complainant's post
traumatic stress disorder); Turner v. Department of the Interior, EEOC
Appeal No. 01956390 (Apr. 27, 1998) ($40,000 awarded where discriminatory
harassment, particularly forcing complainant to carry a forty-five pound
back pack, caused her to experience psychological trauma and physical
injury with permanent effects); Jackson v. United States Postal Service,
EEOC Appeal No. 01972555 (Apr. 15, 1999) ($30,000 awarded for emotional
harm suffered during a six month period); Christian v. Department of
Veterans Affairs, EEOC Appeal No. 01996342 (Sept. 7, 2001) ($30,000
awarded where complainant was continuously sexually harassed by
a co-worker for a period of six years, no medical evidence produced);
Mooney v. United States Dep't of Agric., EEOC Appeal No. 01974494 (May
24, 2000) ($20,000 awarded where complainant suffered from depression and
anxiety for six to seven months, followed by a four to five month period
of Major Depression, due to the agency's discrimination); Banks v. United
States Postal Service, EEOC Appeal No. 07A20037 (Sept. 29, 2003) ($35,000
awarded where complainant suffered from emotional harm in the form of
humiliation, intimidation, embarrassment, and deep depression without
any medical testimony or documentation to support the depression).
Based on the review of the evidence in light of Commission cases regarding
non-pecuniary compensatory damages awarded for emotional harm, we find
that the AJ's award of $8,000 in non-pecuniary compensatory damages is
inconsistent with what the Commission has awarded or affirmed in cases
where complainants have suffered emotional harm similar in severity
and duration to the emotional harm complainant suffered in the instant
case. We find that an award in the amount of $45,000 would be more
appropriate in the instant case.
We further note that complainant requested that we award additional
attorney's fees and costs associated with responding to the instant
appeal and for the cross-appeal. As the prevailing party, complainant
is entitled to attorney's fees and costs associated with the processing
of the underlying complaint as well as any subsequent appeals where
complainant is also the prevailing party. 29 C.F.R. � 1614.501(e).1
CONCLUSION
Based on a thorough review of the record and the contentions on
appeal and cross-appeal, including those not specifically addressed
herein, we REVERSE the agency's final order, AFFIRM the AJ's finding of
discrimination, MODIFY in part the AJ's order of relief, and REMAND the
matter back to the agency to take corrective action with this decision
and the order herein.
ORDER
The Order of the AJ remains the Order of the Commission, except as regards
the additional relief ordered in paragraph 1, the amount of non-pecuniary
compensatory damages ordered in paragraph 2, and the minimum length of
time the Notice of Discrimination must be posted pursuant to paragraph
6, below. The agency is ORDERED to take the following remedial action:
1. Not later than thirty (30) days from the date on which this
decision becomes final, the agency shall restore complainant to the
position which she occupied prior to November 26, 2006, including
title and duties. If intervening circumstances have rendered such
restoration impracticable, the agency shall place complainant in a
comparable position with comparable title and duties, thus restoring
her to a status competitive for promotion to the Level IV grade.
2. Not later than thirty (30) days from the date on which this decision
becomes final, the agency shall tender to complainant non-pecuniary
compensatory damages in the amount of $45,000.
3. Not later than thirty (30) days from the date on which this decision
becomes final, the agency shall tender to complainant $6,239 as pecuniary
compensatory damages.
4. Not later than thirty (30) days from the date on which this decision
becomes final, the agency shall pay directly to complainant's attorney,
Steven Petrou, attorney's fees in the sum of $17,210.
5. Not later than one hundred and twenty (120) days from the date
on which this decision becomes final, the agency shall ensure that the
complainant's first and second line supervisors, from the applicable time
period related to this complaint, will complete a minimum of 8 hours of
EEO training, that must include instruction concerning the protection
afforded to complainants against retaliation for engaging in protected
EEO activity, by Title VII, and other anti-employment discrimination
statutes.
6. Not later than ten (10) days from the date on which this decision
becomes final, the agency will post the enclosed Notice of EEO Compliance
in a prominent location at the Michael E. DeBakey VA Medical Center in
Houston, Texas.
7. The agency shall consider taking disciplinary action against ECL
Executive 2. The agency shall report its decision. 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. Imposition of
mandatory training is not considered to be disciplinary action.
8. Unless the agency already has taken appropriate administrative or
disciplinary action against Chief Nurse 2, the agency is requested to
officially counsel her, and in addition charge her 11/2 hours absence
without leave (AWOL) for leaving the hearing site in flagrant disregard of
the instructions given to her by the Agency Representative, and without
obtaining permission of the Administrative Judge.
The agency shall determine the appropriate amount of back pay, with
interest, and other benefits due complainant, if any, pursuant to 29
C.F.R. � 1614.501, no later than sixty (60) calendar days after the date
this decision becomes final. 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 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, if
any, including evidence that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its VA Medical Center in Houston,
Texas 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 (K1208)
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 (M1208)
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 77960,
Washington, DC 20013. 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 (R0408)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
April 15, 2010
Date
1 We also note that complainant is entitled to a posted notice of the
finding of discrimination, and will amend the AJ's award of relief
accordingly. See 29 C.F.R. � 1614.501(a).
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0720090027
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0720090027