EEOC Appeal No. 0120132365
09-11-2015
Complainant v. Dep't of the Interior)
Complainant
v.
Sally Jewell,
Secretary,
Department of the Interior
(National Park Service),
Agency.
Appeal No. 0120132365
Hearing No. 430-2011-00354X
Agency No. NPS-10-0214
DECISION
Complainant timely filed an appeal from the Agency's May 8, 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 accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission MODIFIES the Agency's final order.
ISSUES PRESENTED
The issues presented are: 1) whether the Equal Employment Opportunity Commission (EEOC) Administrative Judge (AJ) arrived at the correct legal conclusions; 2) whether the AJ's finding that Complainant did not prove that the Agency subjected him to unlawful discrimination and harassment is supported by substantial evidence in the record; 3) whether the AJ correctly found as a matter of law that the Chief did not retaliate against Complainant when he conducted an inquiry into Complainant's previous EEO activity; and 4) whether the AJ correctly found as a matter of law that a supervisor (S1) did not retaliate against Complainant when S1 filed a grievance concerning matters resolved through an EEO settlement agreement.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Protection Park Ranger/Law Enforcement Ranger at the Blue Ridge Parkway (Parkway) at Blowing Rock, North Carolina. The Blue Ridge Parkway is adjacent to Grandfather Mountain, which is managed by a private entity. In 2009, Complainant filed an EEO complaint alleging race and national origin discrimination regarding a non-selection that involved his supervisor (S1) and Chief. The 2009 EEO complaint was settled on October 8, 2009, and provided that Complainant would serve as the Assistant Field Training Lead (FTL) for six months, with a subsequent review of his performance in that position. FTLs supervise the Field Training Program and Field Training Rangers within a particular area.
On May 28, 2010, Complainant filed an EEO complaint in which he alleged that the Agency subjected him to harassment and discrimination on the bases of race (Hispanic1), national origin (Cuban), and in reprisal for prior protected EEO activity under Title VII when:
1. On February 9, 2010, the Agency issued him a letter of warning (LOW);
2. On February 9, 2010, the Agency issued Complainant a letter of reprimand;
3. From December 11, 2009, to February 9, 2010, the Agency denied Complainant Firearms Instructor training, S-212 Chainsaw training, Field Training Evaluation Program (FTEP) training, and the opportunity to teach Use of Force training to other facilities;
4. On November 6, 2009, the Agency downgraded his performance appraisal;
5. In a meeting with the Chief on October 27, 2009, the Chief made negative comments regarding Complainant's work integrity that hindered his opportunity for promotion and upward mobility positions; and
6. On or about October 21, 2009, Complainant was addressed with written and verbal disparaging remarks regarding Complainant's selection for the FTL position. Specifically, Complainant learned that S1 filed a grievance that alleged that Complainant was not qualified to even serve as a Field Training Ranger, much less a FTL, and these allegations were read by the management team.
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 EEOC AJ. Complainant timely requested a hearing, which the AJ held on January 9, 2013.
At the hearing, Complainant's supervisor (S1) testified that he began supervising Complainant in June 7, 2009, and issued his first performance evaluation in October 2009. S1 stated that in the middle of 2009, the Chief Ranger advised all supervisors along the Parkway that they were rating employees too highly, and to pay close attention to make sure that the leading elements met certain criteria. S1 testified that it was difficult for him to evaluate Complainant because he came in somewhat over halfway through the year, and Complainant's previous supervisor allowed him to rate Complainant. S1 stated that he conducted the evaluation based on his perception of Complainant's performance and input from the previous supervisor's comments.
S1 further testified that he originally rated Complainant a "4" on Critical Element 1 (law enforcement duties), but after talking to Complainant about the rating, he changed the rating to "5," the highest rating or "exceptional." S1 stated that this was equal to the rating that Complainant received the previous year in that element, and the overall total rating was higher than the previous year.
S1 testified that Complainant was reprimanded for taking an Agency generator. He testified that he learned that Complainant borrowed a generator from the shop and brought it home to power up his home during an ice storm in late December 2009. S1 further testified that Complainant was on leave during that time and was not expected to have any degree of availability during the time period. S1 also testified that when asked about the generator, Complainant said that he took the generator because his home lost power, his pipes were frozen, his family was sick, and he needed to stay warm.
S1 further testified that when he fueled up his vehicle on December 26, 2009, he noticed that the log indicated that Complainant had fueled up the day before, despite being on annual leave at the time. S1 testified that dispatch then informed him that it had not called Complainant, nor had any other Agency official. S1 testified that when asked about the fuel, Complainant said that he kept his vehicle running so that if he received a call, he did not have to stay outside and try to jump start the vehicle and would be ready to go. S1 further testified that it was not necessarily appropriate for a ranger to fill up a vehicle for idling during a storm because it was more cost-effective to get a jump-start it if needed.
S1 testified that Complainant was issued a letter of warning because he conducted work outside the Park without first obtaining approval. S1 stated that when he called Complainant on December 29, 2009, to ask if he was feeling better and to ask about the fuel log, Complainant told him that he was on Grandfather Mountain performing chainsaw work because some of the trees had fallen on animal cages, and he was attempting to prevent animals from escaping. S1 stated that Complainant had not called him to obtain his approval before going to Grandfather Mountain, but had previously been warned twice to let a supervisor know before he works outside the Park.
S1 testified that S-212 training was required for running chainsaws on the Parkway, but the Agency allowed Complainant to operate chainsaws through International Society of Arboriculture (ISA) certification. S1 also testified that, as a law enforcement officer and field training leader, Complainant was not required to have S-212 training. S1 testified that he approved Complainant to attend S-212 training at Stone Mountain, but Complainant did not attend because the course was canceled. S1 further testified that Complainant then asked to attend S-212 training at New River State Park in North Carolina. S1 testified that he denied Complainant the training because he planned to allow Complainant to go to arborist training, Complainant already was certified to operate a chainsaw, Complainant already had skills beyond the content of the S-212 course, and the priority was to get others trained on operating chainsaws.
S1 also testified that the manual states that rangers must have refresher field training every three years, and that when Complainant applied for Field Training Lead, he had not had a refresher in three years. S1 stated that he tried to get Complainant the refresher after he became FTL so that he could legitimately be in the position, and there was an upcoming class that Complainant wanted to attend. S1 stated that when he asked the program manager about getting Complainant into the class, she responded that the upcoming class was not for Field Training refreshers, but was the initial Field Training class. S1 testified that the program manager therefore denied Complainant's request.
S1 testified that he never said that Complainant should not have been placed in the FTL position because he did not have the skills to be in that position, or that Complainant was potentially incompetent. S1 also testified that he thought that Complainant would do a good job as the FTL, and he only filed a grievance about Complainant's selection for the position because he objected to the "improper procedures" that were used to fill the position.
Regarding the use-of-force training, S1 testified that Complainant was requested to teach use-of-force training at Gulf Islands and Big South Fork, but S1 denied the request because two employees were already out that week. S1 further testified that in 2008, the Agency began to require instructors to take a refresher firearms course every five years, but there was a five-year grace period for instructors.
The Chief testified that in early 2009, he offered Complainant the opportunity to attend firearms training in Dawson, West Virginia, but Complainant responded that he could not attend the course because of a court matter. Regarding the FTEP training, the Chief testified that although there was a requirement that FTLs receive refresher training every five years, only one refresher had been offered since its inception in 2008. The Chief testified that the program manger denied Complainant's request because she believed that the refresher course would not provide Complainant with training beyond what he had already received. Regarding use-of-force training, the Chief testified that he informed the other parks that wanted Complainant to provide training for them that Complainant could only instruct on the condition that Complainant might have to cancel the training if another ranger was sick on the days of the scheduled training. The Chief also testified that he told the other parks that Complainant would have to agree to work on his "lieu day," and the other parks would have to cover Complainant's overtime. The Chief stated that the other parks did not respond to his proposal.
The Chief further testified that when Complainant asked what the Chief's expectations were, the Chief responded that his law enforcement responsibilities were first priority and Field Training Lead duties must be a second priority. The Chief further testified that in late October 2009, Complainant requested a meeting with him. The Chief testified that after Complainant asked him if things were "good" between himself and the Chief, he told Complainant that he wanted to be honest with him. The Chief further testified:
I did have-I initially had concerns about what was said-some of the things that were said in the initial complaint that he had provided. I told him that I had discussed that with the superintendent. But I said my initial concerns were-I don't know how I exactly said it at the time. But my initial concerns were there were inconsistencies. He was saying one thing, and I was saying something completely opposite. And I was concerned as a law enforcement manager, because we have to deal with Giglio2 and issues like that. So I felt it was my obligation to look into it.
Hearing Transcript (HT), p. 126.
The Chief also testified that he relayed to Complainant his concern about Complainant's truthfulness because it seemed that his testimony about certain incidents was different than the Chief's recollection of those incidents.
Additionally, the Chief testified:
But then what I told him [Complainant] was - I went through the file, and through it in detail. And then I realized that what he had done was he had looked at a different case, a different incident than I was talking about.
HT, p. 127.
The Chief testified that after he looked into the apparent discrepancies in Complainant's EEO statements, he realized that Complainant was not lying, and that he and Complainant had different perceptions and recollections about events. "I said [to Complainant] I didn't have concerns after that . . . . But he did express that he did he was very concerned that I had felt that way," the Chief testified. HT, p. 128.
AJ's Decision
The AJ issued a decision on April 23, 2013. In her decision, the AJ found that S1 credibly testified that he issued the LOW to Complainant because he did work for Grandfather Mountain without prior authorization. The AJ noted that Complainant argued that the Agency's reasons were pretextual because it was common practice for rangers to perform work at Grandfather Mountain, but she did not find Complainant's argument convincing because the evidence showed that this was not a situation that required response by a Law Enforcement Officer.
The AJ further noted that Grandfather Mountain's Safety Manager testified that he needed an arborist to cut the trees that had fallen into mountain lion and bear habitats, but Complainant did not go to Grandfather Mountain until 9:30 a.m., which was the next morning after the Safety Manager requested assistance. "The evidence also showed that, although the situation was troubling, it was not an emergency," the AJ concluded. AJ's Decision, p. 7. The AJ further concluded that, even though Complainant's motives may have been well-intentioned, it was clear that he acted outside the scope of his authority when he agreed to perform arborist work outside the Parkway.
Regarding claim 2, the AJ found that the Chief credibly testified that he issued the reprimand to Complainant because Complainant used a government generator for non-government purposes. The AJ noted that Complainant admitted in his January 10, 2010, statement that he had taken the generator to heat and provide water to his personal residence. The AJ further found that Complainant's subsequent claim that he used the generator primarily to charge his government cell phone and communications equipment was unconvincing. The AJ also determined that there was no expectation that Complainant remain response-ready during the relevant time period because he was on annual leave, and that Complainant could have contacted S1 about whether he needed to remain response-ready, but failed to do so.
Regarding claim 3, the AJ noted that S1 denied Complainant's request to attend a Firearms Instructor refresher course because the training was in New Mexico, and the Agency would not pay to send Complainant to New Mexico. The AJ noted that Complainant's Firearms Instructor certification would not expire until 2013. With respect to chainsaw training, the AJ found that S1 credibly testified that he decided to send two rangers who had no chainsaw training instead of Complainant, and that Complainant recently attended arborist training that involved more technical proficiency in using a chainsaw than S-212 training. With respect to FTEP, the AJ noted that the Acting Manager stated that Complainant was not approved for the full FTEP training course because a refresher course was scheduled for later that year. Regarding having Complainant train at other Parks, the AJ noted that the Chief testified that Complainant's main job responsibilities were more important.
Regarding claim 4, the AJ found that the Chief credibly testified that he initially rated Complainant a "4" in Critical Element 1 based on his assessment of Complainant's performance, but after meeting with Complainant, raised the valuation to a "5." With respect to claims 5 and 6, the AJ noted that Complainant testified that the negative comments and disparaging remarks by the Chief occurred during a meeting on October 27, 2009, and in a written grievance S1 filed challenging Complainant's selection for the FTL assignment. The AJ found that Complainant did not establish that the Chief attempted to harass him, and the fact that S1 said things that Complainant did not like in the grievance was not evidence of harassment. The AJ further noted that the Chief testified that he was concerned about inconsistencies between Complainant's testimony and the Chief's testimony in Complainant's previous discrimination complaint, but that the Chief investigated the matter and determined that he and Complainant had a different perception of the incidents pertinent to the complaint. "Although I question the wisdom of [the Chief's] candor in that situation, I do not find it to be evidence of retaliatory animus," the AJ concluded. AJ's Decision, p. 12.
The AJ further noted that S1 testified that he filed the grievance because he disagreed with the Agency's decision to place Complainant in the Field Training Lead assignment. The AJ found that Complainant failed to prove that S1 filed his grievance in order to harass Complainant. The Agency subsequently issued a final order fully adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination and harassment as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant reiterates his claim that shortly after his prior EEO complaint was settled, management subjected him to harassment designed to drive him from his position. Complainant maintains that on December 28, 2009, the naturalist for Grandfather Mountain asked him to respond to a "quasi-emergency" wherein trees partially crushed the habitats of bears and mountain lions. Complainant contends that the possibility of bears or mountain lions getting loose above the Parkway constituted a serious threat to visitor safety, and that he advised Agency dispatch that he would respond to the incident. Complainant maintains that he drove to the site, assisted with the securing the site, and completed the job by 11:45 a.m. Complainant further maintains that during a winter storm, he was required to idle his government vehicle to keep the battery charged because of drain on the battery caused by a new radio.
Complainant also maintains that on the first day after the storm, he realized he needed to refuel, and therefore drove to Agency premises, refueled his vehicle, and took a small generator to use in order to maintain communications equipment, including a cell phone and scanner. Complainant also maintains that he used the generator to help maintain power in his house, and returned the generator within 24 hours after it became clear that the weather would allow him to respond to any emergency. The Agency does not present any contentions on appeal.
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.
ANALYSIS AND FINDINGS
Claims 1, 2, 3, and 4: Disparate Treatment and Hostile Work Environment
Complainant's complaint can be analyzed under both disparate treatment and hostile work environment analyses. In order 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 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. 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).
In order to establish a claim of harassment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an environment, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee. 682 F.2d 897 (11th Cir. 1982).
In this case, for purposes of analysis, we assume without so finding that Complainant established a prima facie case of discrimination under a disparate treatment analysis. Nevertheless, we find that the Agency provided legitimate, non-discriminatory reasons for its actions, as recounted in detail above.
In an effort to prove pretext, Complainant contends that he should not have been issued a letter of warning because he responded to the Grandfather Mountain incident during an emergency, and that the Agency has an established practice of allowing rangers to assist with Grandfather Mountain emergencies without first obtaining permission from management. Complainant also maintains that he frequently responds to Grandfather Mountain for matters beyond law enforcement, such as search-and-rescue missions. Complainant further maintains that he should not have been issued the reprimand because he logged his refueling and reported the generator use, and the incidents underlying the reprimand occurred during a major snowstorm that resulted in widespread power outages that affected his home.
Upon review, it is clear that Complainant and management disagree about whether employees should obtain permission from management before responding to the type of incident to which Complainant responded. Contrary to Complainant's assertion, we do not find that this incident was clearly the type of emergency for which he could not wait for management's approval. In fact, Complainant did not respond to the incident until the day after Grandfather Mountain asked for his assistance. With regard to the use of the generator, Complainant acknowledges that he used the Agency generator to maintain the power in his house, which is a non-Agency use of government property. Complainant maintains that he needed to refuel his Agency vehicle so that he could idle the vehicle to charge its battery. However, testimony revealed that there were cost-effective alternatives to idling vehicles, such as using a jump-start to charge the battery.
Overall, with respect to claims 1, 2, 3, and 4, we find that Complainant did not prove that the Agency's legitimate, non-discriminatory reasons for its actions were pretext for unlawful discrimination. Likewise, under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant's claim of a hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). In so finding, we are persuaded that Complainant sometimes clashed with management about its decisions. However, absent discriminatory animus, the Commission will not second guess an Agency's business decisions. Burdine, 450 U.S. at 249. The record does not reveal any such discriminatory motive with respect to claims 1, 2, 3, and 4. A finding of a hostile work environment is precluded by our determination that Complainant has not established that these matters as set forth above were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000).
Claims 5 and 6
We note 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 EEOC charge process). The statutory retaliation clauses prohibit any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity. Lindsey v. U.S. Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999).
With regard to claim 5, the Chief testified that he informed Complainant that he previously had concerns about some of the things Complainant had said in his previous EEO complaint. The Chief also testified that he discussed this matter with the superintendent and conducted an inquiry into why Complainant made EEO statements that seemed inconsistent with the Chief's testimony. The AJ questioned the wisdom of the Chief's admission to Complainant, but nonetheless found that it did not constitute evidence of retaliatory animus. We find that the AJ erred as a matter of law when she reached this conclusion.
In this case, the Chief testified that he conducted an inquiry into Complainant's previous EEO activity, as well as discussed his previous EEO activity with another Agency official. We find that, in so doing, the Chief engaged in actions that are reasonably likely to deter employees from engaging in EEO activity when he subjected Complainant's EEO statements to management's review and scrutiny. See Bryant v. Dep't of Justice, EEOC Appeal No. 0120113916 (Jan. 31, 2012) (Commission found reprisal because agency targeted complainant for investigation based on prior EEO activity). EEO complaints should be investigated and adjudicated within the EEO process by designated EEO officials, not by management. Although Complainant's previous EEO complaint had been settled, the Chief revived the matter and impermissibly entangled himself into Complainant's EEO activity. See Smith v. Dep't of the Navy, EEOC Appeal No. 0120082983 (Feb. 16, 2010) (improper entanglement with employees' EEO activity is reasonably likely to deter employees from engaging in the EEO process).
Additionally, by informing Complainant about the inquiry into his previous EEO activity, the Chief engaged in additional conduct that could dissuade employees from participating in the EEO process. See Vincent v. U.S. Postal Serv., EEOC Appeal No. 0120072908 (Aug. 3, 2009) (comments that discourage an employee from participating in EEO process violate letter and spirit of EEOC regulations and constitute per se violation of the law). In essence, the Chief's conduct has a chilling effect on the EEO process because it sends the message that EEO claims and testimony are vulnerable to subsequent inquiry, discussion, and adverse actions by management officials. Thus, we find that the Chief's inquiry into Complainant's previous EEO activity constitutes reprisal.
Regarding claim 6, the record reveals that, pursuant to a settlement agreement that resolved a previous EEO complaint, Complainant was appointed to serve as FTL. In response, S1 filed a grievance dated October 21, 2009, in which he challenged Complainant's FTL appointment.3 S1 testified that he filed the grievance because he disagreed with the process by which Complainant was appointed FTL. S1 also indicated that he filed his grievance because Complainant did not meet the "criteria" for FTL. HT, p. 83. We note that the Commission has held that it is unlawful retaliation for a manager to threaten to file a civil action in response to an EEO complaint. Boyd v. Dep't of Transportation, EEOC Appeal No. 01955276 (Oct. 10, 1997). Likewise, when a manager files a grievance in response to the terms of an EEO settlement agreement, he has engaged in actions that are reasonably likely to deter employees from engaging in EEO activity. Consequently, we find that the AJ erred as matter of law when she found that Complainant did not prove that he was subjected to reprisal with respect to claim 6.
CONCLUSION
Therefore, based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order with regard to claims 1, 2, 3, and 4, for the reasons set forth in this decision. The Commission REVERSES the final order with respect to claims 5 and 6, and REMANDS these matters to the Agency for further processing in accordance with this decision and the Order below.
ORDER
The Agency is ORDERED to take the following remedial 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 retaliation 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 provide at least eight hours of in-person EEO training to the responsible management officials identified as Chief and S1 regarding their responsibilities under Title VII, with special emphasis on the duty of managers to avoid reprisal and impermissible entanglement in EEO activity.
3. The Agency shall consider taking appropriate disciplinary action against the responsible management officials identified as Chief and S1. 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 official identified as Chief and S1 have left the Agency's employment, the Agency shall furnish documentation of the departure date(s).
4. The Agency shall post the notice referenced in the paragraph below entitled, "Posting Order."
5. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include evidence that the corrective action has been implemented.
POSTING ORDER (G0914)
The Agency is ordered to post at its Blue Ridge Parkway facilities 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)), he 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 (M0815)
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, 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 (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 Complainants Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 11, 2015
Date
1 We note that the term "Hispanic" typically denotes national origin rather than race. However, herein we acknowledge Complainant's self-identification of his race as Hispanic.
2 Giglio v. United States, 405 U.S. 150 (1972), was a landmark U.S. Supreme Court decision that set forth the duty of prosecutors in criminal cases to disclose potential impeachment information about government witnesses, particularly law enforcement officers. U.S. Department of Justice, accessed online at http://www.justice.gov/ag/policy-regarding-disclosure-prosecutors-potential-impeachment-information-concerning-law.
3 The record reveals that S1 ultimately rescinded the grievance in or about March 2011. HT, p. 31.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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