EEOC Appeal No. 0120132430
07-09-2015
Complainant v. Department of Justice
Complainant
v.
Loretta E. Lynch,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120132430
Hearing No. 530-2011-00257X
Agency No. BOP-2011-0184
DECISION
Complainant filed an appeal from the Agency's May 16, 2013, final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission REVERSES the Agency's final order.
ISSUE PRESENTED
The issue presented is whether substantial evidence supports the Equal Employment Opportunity Commission's (EEOC) Administrative Judge's (AJ) conclusion that Complainant did not prove that he was subjected to reprisal when he was subjected to derogatory comments about his EEO activity, had his performance evaluation, was reassigned to the night watch shift, and reassigned from his Administrative Lieutenant position.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a GS-11 Supervisory Lieutenant at the Gilmer Federal Correctional Institution (FCI) in Glenville, West Virginia. Complainant had been promoted to GS-11 approximately in early 2010. On or about May 11, 2010, Complainant became a representative for an Associate Warden who filed an EEO complaint against the Agency. The complaint named another Associate Warden (AW1) and the former Warden as responsible management officials.
Complainant filed an EEO complaint in which he alleged that the Agency discriminated against him in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. On October 21, 2010, the Associate Warden (AW1) permitted verbal attacks on him in the presence of staff and visiting staff, and the former Warden permitted AW1 to operate "outside the parameters," making it possible to retaliate against him;
2. On November 3, 2010, AW1 lowered his outstanding annual evaluation;
3. On November 5, 2010, Complainant was assigned to the Administrative Lieutenant's post, causing him to be removed from day watch and placed on evening watch; and
4. On March 9, 2011, Complainant was demoted from the position of lieutenant and immediately moved.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an AJ. Complainant timely requested a hearing.
At the hearing, Complainant testified that on October 21, 2010, he was in the Warden's conference room for the correctional services program review closeout. Complainant stated that while waiting for the meeting to begin, a supervisory lieutenant (C1) who was the Special Investigations Lieutenant entered the room in a very agitated state and openly referenced a staff issue that never should have been discussed in an open forum. Complainant further testified that C1 became loud and made accusations, which culminated in him yelling to him, "No, you just help them with their EEO complaints and grievances." Complainant testified that he felt embarrassed and belittled and tried to defend himself. Complainant testified that AW1 and his supervisor (S1) then stopped C1's "tirade," but the situation should have never reached this point. AW1 just sat there while C1 verbally assaulted him, and when Complainant tried to defend himself, AW1 cut him off and said, "Not here, this is not the place." Complainant testified that he complained to S1 about the incident.
Complainant further testified that, prior to this meeting, he had been scheduled to serve as Acting Captain from October 24, 2010, until October, 30, 2010. Complainant testified that the following week, he received a call from S1 informing him that AW1 was angry and moved Complainant to the morning watch to cover for another lieutenant that would be filling the Acting Captain slot to which he was previously assigned. Complainant further testified that the previous Warden allowed Associate Wardens to take over the role of Warden and stripped one of the Associate Wardens of his responsibilities and gave them to AW1.
Complainant further testified that on November 3, 2010, he learned that his S1 rated him "outstanding" on his performance evaluation. Complainant stated that S1 subsequently met with him to inform him that AW1 lowered his 2010 performance rating from "outstanding" to "excellent" in reprisal for his EEO activity and did not explain his reason for lowering the rating. Complainant testified that his supervisor (S1) tried to explain to AW1 why she felt he deserved an outstanding rating, but AW1 ordered that it be lowered anyway. Complainant testified that his previous rating was "excellent."
Complainant also testified that was assigned by S1 to perform the duties of the Administrative Lieutenant, which is a post generally assigned for a one year to 18 months. He stated that in November 2010, he had been in the position for six months, and S1 called him to inform him that he would not remain in the position, and AW1 wanted him assigned to the evening watch. Complainant further testified that AW1 also terminated him from his Special Housing Lieutenant post after six months. Complainant testified that he never actually worked the evening watch because another lieutenant traded with him to watch that shift.
Complainant testified that because he felt that he could no longer protect himself from AW1's and the former Warden's retaliation, he decided to step out of the supervisory ranks by applying for a Counselor position. He stated that he felt that his was the one way AW1 and the former Warden would cease their retaliatory actions. "I made the decision, a difficult one, after ten years a Supervisory Lieutenant to step down to a GS-9 Counselor from a GS-11 Lieutenant. By stepping down, I would remove myself from the direct ability of [AW1] under direction of [the former Warden] to inflict retaliation on me," Complainant testified. Hearing Transcript (HT), pp. 16, 17. Complainant testified and stipulated that he voluntarily accepted the GS-9 Correctional Counselor position. HT, p. 7, 8.
AW1 testified that he was aware of Complainant's previous EEO activity and observed Complainant meet with the employee he represented on several occasions. Regarding claim 1, AW1 testified that he could not remember what the argument was about, but he recalled that Complainant and C1 got a "little bit hot with discussion or angry with each other." HT, p. 35. He stated that "not very long" after the argument began, he told both Complainant and C1 to stop the argument. Id. AW1 further testified that he told C1 that he could not get in an argument with his peers in front of others. AW1 stated that he also had S1 talk to both Complainant and C1 about the matter.
Regarding claim 2, AW1 testified that it is his responsibility to review all supervisory evaluations for approval, and he lowered Complainant's evaluation rating to "excellent" because he did not think he had earned an outstanding rating, and it was the his first year as a GS-11 lieutenant. When asked about S1's investigative statement that AW1 lowered the evaluation because Complainant allegedly smoked in a non-smoking area and dressed improperly, AW1 testified that he could not recall these reasons.
Regarding claim 3, AW1 testified that he moved Complainant to evening watch because GS-11 lieutenants are supposed to work all three shifts, and Complainant had been assigned to the day watch most of the time since he became a GS-11 lieutenant. He stated that Complainant actually never worked the evening watch because S1 allowed him to switch with another lieutenant who wanted to work evenings. AW1 further testified that he could not recall if he told S1 that Complainant would not serve as Acting Captain the following week or if he removed Complainant from an Administrative Lieutenant position and placed him on the evening watch after six months in that position.
Regarding claim 4, AW1 testified that the Agency had a GS-9 Counselor position available for which Complainant applied. He testified that the former Warden selected Complainant for the position. AW1 further testified that after Complainant was selected for the Counselor position, AW1 saw Complainant walking around the compound, hanging around the lieutenant's office, and talking with staff. AW1 testified that some of Complainant's Counselor work was not being done; therefore, he instructed Complainant's supervisor to keep him in the unit and do the job for which he was hired.
Regarding claim 1, S1 testified that she observed C1 "holler" to Complainant from across the room about him helping employees with EEO complaints and grievances. S1 testified that she told C1 to "knock it off," and after some back and forth, AW1 stopped the altercation. S1 further testified that she believed that Complainant was belittled and embarrassed by C1's outburst. S1 testified that she counseled Complainant and C1 about the incident but did not issue any written document.
S1 further testified that Complainant was scheduled to be the Acting Captain the following week, but AW1 removed Complainant from serving in that capacity and placed him on another shift. S1 testified that she recalled Complainant telling her that he thought he was being punished, while C1 had been rewarded with annual leave. S1 testified that she also thought that Complainant was punished when he was removed from Acting Captain. S1 also testified that before she even met Complainant, the former Warden advised her to be careful of Complainant because he was known "to file EEO complaints on everything." HT, p. 102.
Regarding claim 2, S1 testified that she rated Complainant's "outstanding" on his performance evaluation because he went into an area that was completely in disarray and brought it up to par, worked hard, was the only employee she could rely on to get things done, and excelled at every assignment. She stated that AW1 lowered the rating to "excellent," but she did not think the lowering of the evaluation was justified. S1 testified that AW1 did not have enough daily interaction with Complainant to rate him. S1 testified that AW1 told her that Complainant's rating was lowered because Complainant was caught smoking in non-smoking areas and dressed improperly, but she did not see these issues as performance issues. S1 also testified that there was no documentation to support these alleged infractions. S1 further testified that although she did not know what AW1 was thinking, the lowering of Complainant's rating appeared to be an act of reprisal. HT, p. 104.
Regarding claim 3, S1 testified that AW1 told her that he moved Complainant to the night watch because he wanted to observe another lieutenant who had some conduct issues on day watch. However, S1 testified that she did not believe that this was the real reason AW1 moved Complainant from the position. S1 also testified that lieutenants normally serve as Administrative Lieutenants for a year to 18 months. S1 testified that Complainant never actually worked the night shift because another lieutenant wanted to work that shift. S1 testified that AW1 and the former Warden had issues with Complainant and treated him differently than other employees. S1 testified that Complainant is outspoken, and AW1 and the former Warden did not like this fact. S1 testified that she perceived that the former Warden and AW1 retaliated against him, and Complainant's EEO activity harmed his ability for promotion and transfers. HT, p. 115. S1 further testified that she believed that the Agency engages in retaliation because of EEO activity.
C1 testified that on October 21, 2010, he entered the room and said to Complainant, "Why don't you go help staff file a grievance on me?" HT, p. 127. He also testified that he told Complainant, "Why don't you go help them with their EEO against me?" HT, p. 129. C1 further testified that he and Complainant engaged in the same type of verbal bickering that they had engaged in for eight years. He stated that AW1 and S1 told him to cut it out and sit down because it was not the time for such conduct, which ended the altercation. C1 stated that after the meeting, he got his "hand slapped" by AW1 and S1, who told him to remain professional. HT, p. 130.
The former Warden testified she was aware of Complainant's previous EEO activity during the relevant time period. The former Warden testified that she disagreed with Complainant's assertion that she allowed associate wardens to operate outside parameters, and AW1 was responsible for the programs division at the institution, which includes where Complainant worked. The former Warden further testified that she was directly involved in annual evaluations, but it would have never occurred to her that Complainant would have been recommended for an "outstanding" rating because it was his first year as a GS-11, and his first year under a new rating procedure.
A lieutenant (C2) testified that he perceived Complainant was treated differently than other lieutenants, and there was animosity toward Complainant from AW1 and the former Warden. "You go into a - - - if there was a meeting or something, and [Complainant's] name was brought up, there was just a, nothing verbally said, but it was just a perception either a little sigh, or a rolling of the eyes that indicated their disapproval of [Complainant]." HT, p. 65, 66. C2 further testified that he thought that Complainant was treated differently in regard to changes in shifts and assignments because he was not given advance notice, whereas others were given ample notice. He stated that lieutenants normally work as Administrative Lieutenants for a year to 18 months because that is a specialized job, but AW1 removed Complainant from the position in a short amount of time.
Another lieutenant (C3) testified that he observed C1 commenting about Complainant helping employees with grievances and EEOs, and C1's outburst was unprofessional. C3 testified that his evaluation was also lowered by AW1 during the same time period. C3 further testified that one year is the standard time that a lieutenant works as an Administrative Lieutenant or in the Special Housing unit.
A third lieutenant (C4) testified the he witnessed AW1 start an altercation with Complainant by loudly stating from the across the room that Complainant helped employees with EEO complaints and grievances. C4 further testified C1's outburst was out of line, but AW1 did not stop the "verbal assault" quickly enough. C4 also testified that because of the altercation, Complainant was not allowed to be Acting Captain the following week. C4 further testified that his evaluation was also lowered by AW1. C4 stated that lieutenants are supposed to work as Administrative Lieutenants and in the Special Housing Unit for 12 months. C4 testified that he perceived obvious animosity toward Complainant from the former Warden and AW1 and that AW1 retaliated against Complainant.
The AJ's Decision
The AJ held a hearing on January 16, 2013, and issued a decision on April 12, 2013. In her decision, the AJ found that Complainant established a prima facie case of reprisal. The AJ further found that the Agency provided legitimate, non-discriminatory reasons for its actions. The AJ determined that the record reflected that a coworker, not AW1, initiated a verbal exchange with Complainant regarding his service as an EEO representative, and AW1 was not responsible for the coworker's actions and took immediate action to cease the exchange. The AJ further found that the evidence did not show that the former Warden allowed AW1 to operate outside his parameters in retaliation against Complainant. The AJ also determined that Complainant's "excellent" rating was in line with his previous ratings, and AW1 lowered the ratings of other employees who had no EEO activity. Further, the AJ determined that Complainant did not prove that the Agency's explanations were pretext for unlawful discrimination. The Agency subsequently issued a final order fully adopting the AJ's findings.
CONTENTIONS ON APPEAL
On appeal, Complainant reiterates the allegations in his complaint. Complainant also maintains that, almost a year before becoming involved in an employee's EEO case, he was promoted by the former Warden to GS-11 Lieutenant, but after he became a representative, he was denied advancement. The Agency requests that we affirm its final order because Complainant has not shown that its articulated reasons are pretext for unlawful discrimination.
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 for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9, at � VI.B. (Nov. 9, 1999).
ANALYSIS AND FINDINGS
In order to prevail in a disparate treatment claim wherein there is no direct evidence of discrimination, 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 she 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 802 n. 13.
Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas and Coffman v. Dept. of Veteran Affairs, EEOC Request No. 05960473 (November 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) complainant engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, complainant was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dept. of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000).
The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't 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). At all times, the complainant retains the burden of persuasion, and it is his obligation to show that the agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr., 509 U.S. 502, 519; U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983).
We note that in adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute reprisal or retaliation. Lindsey v. United States Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999) (citing EEOC Compliance Manual, No. 915003 (May 20, 1998)). Instead, the statutory reprisal clauses prohibit any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter a complainant or others from engaging in protected activity. Id.
Upon review, we first note that the AJ erred as a matter as law with respect to claim 1. C1's remarks subjected Complainant to ridicule because of his EEO activity. Moreover, C1 broadcasted Complainant's EEO activity in the presence of Complainant's coworkers and management. We note that C1 was a supervisory lieutenant who served as the Special Investigations Lieutenant. In this capacity, C1 was responsible for sensitive staffing matters and worked closely with AW1 and the former Warden. Consequently, we find that, even standing alone, C1's conduct was reasonably likely to deter an employee from engaging in EEO activity, and therefore, constituted per se retaliation. See Complainant v. Dep't of Justice, EEOC Appeal No. 0720120032 (May 1, 2014) (complainant subjected to retaliation when Human Resources employee and coworker inadvertently left message on complainant's work voicemail berating her and using extremely strong language while discussing settlement of complainant's prior EEO complaint).
Regarding claims 2 and 3, Complainant previously engaged in EEO activity when he served as representative for an employee's EEO complaint. AW1 and the former Warden acknowledge that they were aware of Complainant's previous EEO activities throughout the relevant time period. Further, the Agency's alleged actions were reasonably likely to deter employees from engaging in EEO activity. Finally, Complainant's EEO activity occurred shortly before or simultaneously with the alleged actions in this case, and the EEO complaint Complainant was involved with named AW1 and the former Warden as responsible management officials. As such, there is a close nexus between Complainant's previous EEO activity and the actions in this complaint. Consequently, we find that Complainant established a prima facie case of reprisal for claims 2 and 3.
We further find that the Agency provided legitimate, non-discriminatory explanations for its actions with regard to claims 2. Specifically, AW1 testified that Complainant's evaluation was lowered because he did not deserve an "outstanding" rating, and it was his first year at GS-11 level.
In an attempt to prove pretext, Complainant maintains that during the relevant time period, AW1 never provided him with an explanation for downgrading the rating. S1 testified that AW1 told her that he lowered Complainant's evaluation solely because Complainant smoked in a non-smoking area and wore improper attire, but when asked about this allegation during the hearing, AW1 stated that he could not recall if he told S1 this. We find it curious that AW1 could not recall if he lowered Complainant's rating because of smoking, because this is the type of allegation that a responsible management official normally should be able to deny or affirm.
During the hearing, AW1 testified that Complainant's rating was lowered because he did not deserve an outstanding rating. However, we note that AW1 did not specify anything that was lacking in Complainant's work performance, nor did he state what Complainant needed to do to earn an "outstanding" rating. We further note that there is no documentation to support any claim that Complainant had either performance or conduct issues. In contrast, S1 provided specific testimony about Complainant's performance during the relevant time period. For example, S1 testified that Complainant deserved an outstanding rating because he went into an area that was completely in disarray and brought it up to par, worked hard, was the only employee she could rely on to get things done, and excelled at every assignment.
Additionally, we find it significant that S1 testified that she did not think the lowering of the evaluation was justified and that AW1 did not have enough daily interaction with Complainant to rate him. It is noteworthy that S1 also testified that she thought the lowering of Complainant's rating appeared to be an act of reprisal. The Agency notes that other employees also had their ratings lowered by AW1 during the relevant time period. However, the Agency did not specify why these employees had their ratings lowered, or if they were even similarly situated to Complainant.
We further note that, during the investigation, S1 stated that AW1 told her that he was lowering Complainant's evaluation because "he tends to run his mouth" and "does not act like a supervisor." S1 also testified that before she even met Complainant, the former Warden advised her to be careful of Complainant because he was known "to file EEO complaints on everything." Coworkers also testified that the former Warden and AW1 displayed obvious animosity toward Complainant that they perceived to be related to his EEO activity.
We note that the AJ did not render any credibility determinations regarding the witnesses in this case, nor address their testimony in her analysis. However, we are persuaded that S1's account is more credible; it is largely corroborated by or consistent with the testimony of other witnesses. In contrast, AW1 testified that he did not recall whether he had advised S1 of the reason he lowered Complainant's performance rating.
Further, we find that witness statements reveal considerable animus from management against Complainant because of his EEO activity. We determine that evidence of retaliation is compelling in this case, and as such, no reasonable fact-finder could conclude that AW1's explanation for lowering Complainant's evaluation is worthy of belief. Thus, for claim 2, we find that the AJ's conclusion that Complainant did not prove reprisal is not supported by substantial evidence.
Regarding claim 3, we find that the Agency provided a legitimate, non-discriminatory reason for reassigning Complainant to the evening watch. Specifically, AW1 testified that he moved Complainant to evening watch because GS-11 lieutenants are supposed to work all three shifts, and Complainant had been assigned to the day watch most of the time he had been a GS-11 lieutenant. However, AW1 also testified that he could not recall if he removed Complainant from an Administrative Lieutenant position, or if he told S1 that Complainant could not serve as Acting Captain.
In an attempt to prove pretext, Complainant maintains that witness testimony corroborates his claim that he was prematurely removed from the Special Housing Unit's Lieutenant post. Upon review, we determine that S1 and other witnesses corroborated Complainant's claim that AW1 removed him from his Administrative Lieutenant assignment several months before Administrative Lieutenants are normally rotated to another position. Additionally, S1 testified that Complainant was not allowed to serve as Acting Captain a mere week after C1's outburst about his EEO activity, but AW1 maintained that he could not recall if he did not allow Complainant to serve as Acting Captain. Moreover, S1 testified that Complainant was punished when he was removed from the assignment, that AW1 and the former Warden retaliated against Complainant, and that Complainant's EEO activity harmed his ability for promotion, assignments, and transfers. Again, the AJ did not render credibility determinations, but we are persuaded by S1's detailed, unwavering testimony. In so finding, we note that S1 was supervised by AW1 and directly witnessed the events in the case. Further, S1's testimony is corroborated by or consistent with the testimony of other witnesses.
As such, we conclude that evidence of retaliation is so compelling for claim 3 that no reasonable fact-finder could conclude that the Agency's explanation is worthy of belief. Thus, for claim 3, we find that the AJ's conclusion that Complainant did not prove reprisal is not supported by substantial evidence.
Finally, during the hearing, Complainant stipulated that he voluntarily chose to accept a lower-grade position, and that claim 4 was not "really an issue" in this case. HT, p. 8. Consequently, we will not address the merits of this claim or order remedies associated with this matter.
CONCLUSION
Consequently, based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the AJ's finding that Complainant was not subjected to reprisal because of his previous EEO activity. The Commission REMANDS this matter to the Agency for further processing in accordance with this decision and the ORDER below.
ORDER
The Agency is ORDERED to undertake the following actions:
1. Within one hundred and twenty (120) calendar days from the date this decision becomes final, the Agency will conduct and complete a supplemental investigation on the issue of Complainant's entitlement to compensatory damages, and will afford him an opportunity to establish a causal relationship between the Agency's reprisal and his pecuniary or non-pecuniary losses, if any. Complainant will cooperate in the Agency's efforts to compute the amount of compensatory damages, and will provide all relevant information requested by the Agency. The Agency will issue a final decision on the issue of compensatory damages. 29 C.F.R. � 1614.110. The final decision shall contain appeal rights to the Commission. The Agency shall submit a copy of the final decision to the Compliance Officer at the address set forth herein.
2. Within one hundred and twenty (120) calendar days from the date this decision becomes final, the Agency shall ensure that C1, AW1, and the former Warden are not in Complainant's chain of command. In order to ensure this, the Agency should remove C1, AW1, and the former Warden from Complainant's chain of command. In doing so, the Agency shall not move or transfer Complainant, unless Complainant agrees to such an action.
3. Within one hundred and twenty (120) calendar days from the date this decision becomes final, the Agency shall provide at least eight hours of EEO training to all management officials and supervisory personnel at Gilmer Federal Correctional Institution regarding their responsibilities under Title VII, with special emphasis on the duty to avoid reprisal and improper disclosure of EEO activity.
4. The Agency shall consider taking appropriate disciplinary action against the responsible management officials identified as C1, AW1, and the former Warden. The Agency shall report its decision to the Compliance Officer referenced herein. 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 identified as C1, AW1, and former Warden have left the Agency's employment, the Agency shall furnish documentation of their departure dates.
5. The Agency shall post the notice referenced in the paragraph below entitled, "Posting Order."
6. 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 evidence that the corrective action has been implemented.
POSTING ORDER (G0914)
The Agency is ordered to post at Gilmer Federal Correctional Institution 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.
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.
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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
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
July 9, 2015
Date
2
0120132430
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120132430