01992071_r
07-11-2002
Delores Lambert, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Delores Lambert v. Social Security Administration
01992071
July 11, 2002
.
Delores Lambert,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01992071
Agency Nos. 94-0837-SSA, 95-0215-SSA, 95-0476-SSA, 95-0586-SSA,
96-0183-SSA, 96-0204-SSA, 97-0018-SSA
Hearing Nos. 310-98-5030X, 310-98-5031X, 310-98-5032X, 310-98-5033X,
310-98-5229X, 310-98-5230X, 310-98-5231X
DECISION
Complainant is a Social Insurance Specialist at the agency's Dallas
District Office, but has performed only union and EEO representation
duties since 1991. Complainant filed the seven (7) complaints of
employment discrimination at issue in the present appeal between
1994 and 1996. In these complaints, she alleged harm in violation of
Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42
U.S.C. � 2000e et seq., Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. Her complaints were addressed in two separate final agency
decisions; the first dismissed the bulk of her claims for abuse of
process, and the second found no discrimination in the remaining claims.
Complainant appealed both decisions in the present appeal.
BACKGROUND
On February 21, 1995, the agency dismissed the entire complaint raised
in Agency No. 94-0837-SSA for failure to state a claim. Complainant
appealed, and the Commission remanded a portion of the complaint for
further processing. See Lambert v. Social Security Administration, EEOC
Appeal No. 01953628 (October 19, 1995) (reversing dismissal of claim
concerning the agency's initiation of a criminal investigation against
complainant by the Department of Justice and Postal Inspector of the
United States Postal Service). Meanwhile, the agency consolidated three
(3) complaints for processing -- Agency Nos. 95-0215-SSA, 95-0476-SSA, and
95-0586-SSA. The agency dismissed a portion of these three complaints,
and complainant appealed. The Commission ultimately affirmed the
agency's dismissals. See Lambert v. Social Security Administration,
EEOC Request No. 05970586 (October 8, 1998) (granting reconsideration
of EEOC Appeal No. 01961940, and finding all claims at issue properly
dismissed by the agency). The remanded claim from 94-0837-SSA,
and those not dismissed from Agency Nos. 95-0215-SSA, 95-0476-SSA,
and 95-0586-SSA were consolidated for investigation (Investigation 1).
Investigation 1 concerned discrimination on the bases of sex, disability,
age, and in reprisal for EEO activity when:
By memorandum dated July 18, 1994, management denied complainant's
requests for official time to conduct representational research outside
of the downtown Dallas area.
The Deputy Director of the Disability Quality Branch (DQB) and the Deputy
Regional Commissioner denied complainant's request for reasonable time
to prepare for a coworker's EEO hearing held in McAlester, Oklahoma on
September 14 - 15, 1994.
The agency denied complainant's request for a rental car to drive to
the September 14, 1995 hearing.
The agency refused to reimburse complainant for part of her travel
expenses to attend the September 14, 1995 hearing.
Complainant was denied credit hour compensation for the hearing.
The Director of DQB failed to compensate complainant for previously
approved credit hours earned on July 21, 1994.
Complainant's request for �over-tour�<1> compensation for April 18 -
19, 1995, was denied.
On June 22, 1995, management denied complainant's request for credit
hours on April 21, 1995.
The Director of DQB failed to respond to complainant's October 4,
1994 request for credit hour compensation for over-tour hours worked
September 13 - 15, 1995.
Management failed to respond timely to complainant's April 21, 1995
memorandum requesting her credit hour balance and compensation for
over-tour time worked at Headquarters from March 22 to April 12, 1995.
By memorandum dated June 30, 1995, management informed complainant
that she would no longer be authorized overtime or credit hours for
representational activities involving discrimination complaints.
Complainant was denied official time by the Director of DQB on September
15, 1994, after her car broke down.
By memorandum dated October 26, 1994, the Director, DQB denied
complainant four (4) hours of official time for September 19, 1994, and
requested that a form SF-71 Application for Leave be submitted instead.
Complainant's initial request for official time on April 18 - 20, 1995,
to serve as a technical assistant in a hearing involving an Office of
Hearings and Appeals (OHA) employee was denied, and the complainant
used leave instead. (Duty status time later was approved and the leave
restored).
On September 15, 1994, the Director of DQB was rude and threatening to
complainant when she called to request continued official time.
Processing complainant's October 4, 1994 request for Continuation of
Pay (COP) for an injury sustained September 19, 1994, was delayed until
October 26, 1994.
The Deputy Director of DQB violated complainant's privacy when he
discussed the processing of her COP claim with his brother.
Management requested additional information regarding individual
cases and circumstances for which complainant sought official time.
For example, on November 15, 1994, the Deputy Director of DQB insisted
upon and received case numbers, then placed many additional demands for
information, including why complainant was consulting with an attorney.
The Deputy Director of DQB failed to approve official time for attorney
consultation on November 15, 1994. Official time was denied for hours
spent off-site at an attorney's office preparing for a hearing on April
17, 1995.
By memorandum dated May 8, 1995, management �denied complainant the
right to reconsideration of the decision to deny official time.�
Management denied complainant official time to retrieve EEO
representational mail from the Bent Tree Post Office on April 17, 1995,
and other dates.
Management failed to provide a non-networked personal computer with
Windows software for complainant's use as a reasonable accommodation.
On June 1, 1995, management refused to list complainant's correct
telephone number on the office telephone listing as a reasonable
accommodation.
On or about June 15, 1995, the Deputy Director of DQB humiliated
complainant by interrogating the Floor Warden of the eighth (8th) floor,
concerning complainant's actions on April 21, 1995.
On July 10, 1995, the Deputy Director of DQB stated that complainant
was to furnish him with her witness list.
Agency officials took action in reprisal for prior EEO activity when
they initiated an investigation into complainant's alleged unauthorized
use of official mail.
Complainant filed three more complaints that the agency consolidated
for processing � Agency Nos. 96-0183-SSA, 96-0204-SSA, and 97-0018-SSA.
The agency accepted ten claims for investigation, and dismissed six
others for stating the same claims addressed in Investigation 1.
Complainant appealed, but the Commission affirmed the dismissals.
See Lambert v. Social Security Administration, EEOC Appeal No. 01972600
(February 11, 1999), req. for recons. den., EEOC Request No. 05990474
(November 4, 1999). The agency investigated the ten accepted claims
(Investigation 2), concerning discrimination on the same bases addressed
in Investigation 1, including when:
By memorandum dated January 29, 1996, management denied complainant's
requests for official time to serve as a Technical Assistant at EEO
hearings.
Management denied complainant's requests for travel expense reimbursement
to serve as a Technical Assistant at EEO hearings.
Management harassed complainant regarding religious compensatory time
by not granting credit for religious compensatory time worked, by
failing to respond timely to her requests for religious compensatory
time, by returning her requests and asking for additional information
prior to approving her requests, and by failing to provide complainant
with copies of the laws, rules, and regulations governing religious
compensatory time. Complainant cites memoranda dated January 26,
March 26, April 4, and April 16, 1996, to support her claim.
Management harassed complainant regarding her requests for appropriate
over-tour compensation by repeatedly denying her requests, returning
her requests to obtain additional information prior to approval, failing
to respond timely to her requests for over-tour compensation, approving
lesser amounts of time than requested, denying official time altogether,
and delaying overtime payments. Complainant cites the following actions
to support her claim:
On January 25, 1996, complainant's request to work credit hours while
she attended training was denied.
Management did not respond to her January 16, 1996 request for six
(6) hours of overtime pay until March 4, 1996, and approved only four
(4) hours.
Complainant was charged four (4) hours of leave to attend a hearing
on January 10, 1996.
By letter dated March 12, 1996, management failed to approve official
time for complainant to conduct partnership training.
By memorandum dated April 4, 1996, management sought clarification
of complainant's representational time and attendance on February 28,
1996, and alleged that she was not involved in an activity for which she
had received approval. By a memorandum dated May 13, 1996, management
denied complainant compensation for one and a half (1�) hours worked
over-tour on February 28, 1996.
Complainant has not received overtime pay for travel on February
17, 1996. On March 21, 1996, management called complainant while she
prepared for a hearing and harassed her about her overtime request.
Management refused to restore annual leave used on June 24, 1996.
By a memorandum dated September 3, 1996, complainant's May 30, 1996
request for over-tour compensation (preferably overtime), for February
17, April 29, and May 10, 1996, was denied.
Although complainant requested the use of a laptop computer on November
22, 1995, the equipment was not provided until January 4, 1996.
Complainant contends that the delay in providing the equipment was
intentional.
By a memorandum dated January 29, 1996, management denied complainant
administrative leave to participate in the Video Display Terminal
program. Management also delayed the processing of complainant's
January 31, 1996 request for reimbursement of partial vision expenses.
The Director of Region VI, Office of Program Integrity Reviews, failed
to provide complainant with a travel order to use for her official
trip to Baltimore from January 30, to February 7, 1996, and failed
to issue a timely travel order for complainant's travel from June 5,
to June 7, 1996.
On April 12, 1996, complainant was not selected for the GS-105-13 Social
Insurance Specialist (Team Leader) position advertised as VAN 61-96.
Management delayed its response to complainant's April 11, 1996 request
for reasonable accommodation until June 20, 1996, and then denied
the request.
On June 7, 1996, management delayed the processing of complainant's
approved Office of Workers' Compensation Program (OWCP) claim by not
completing the management portion of form CA 7, and instead, forwarded
the form to the Regional Personnel Office.
At the conclusion of each investigation, complainant requested a hearing.
An EEOC Administrative Judge (AJ) consolidated both Investigation
1 & 2 for a single hearing. Prior to conducting the hearing, the AJ
remanded the bulk of complainant's claims for dismissal, reasoning that
they constituted an abuse of process. Except for claims concerning
complainant's nonselection, religious compensatory time, and reasonable
accommodations for disabilities, the AJ found that all of the claims
involved union activity, complainant's representation of others in
EEO complaints, and OWCP issues. The AJ noted that complainant filed
forty-one (41) prior EEO complaints, many involving identical union and
EEO representation issues. According to the AJ, complainant's repetition
of these previously decided issues was intended to, �retaliate against
the agency's EEO administrative process, challenge various other agency
practices, [and] secure a forum to vent labor/management disputes or
hostilities.� Order of Remand, at 2 (September 10, 1998). By decision
dated November 6, 1998, the agency adopted the AJ's recommendation,
and dismissed the bulk of complainant's claims for abuse of process.
Complainant timely appealed the dismissal to this Commission, docketed
as the present appeal.
The AJ held a hearing on complainant's remaining claims, and issued a
bench decision on October 1, 1998. In her decision, the AJ found no
wrongdoing from the nonselection or reasonable accommodation claims,
but found discrimination on the basis of reprisal in the religious
compensatory time claim. In its March 8, 1999 final decision, the
agency adopted the AJ's findings for the nonselection and reasonable
accommodation claims. However, the agency found no discrimination from
the religious compensatory time issue.
With regard to the nonselections, the AJ found a legitimate,
nondiscriminatory reason for the agency's actions.<2> The agency
argued that complainant was not selected for the position because
the selectees, unlike complainant, had current program experience and
demonstrated leadership capabilities. Complainant had not worked on
program duties since assuming her union position in 1991. The agency
found that complainant failed to prove that the agency's reasoning was
a pretext for discrimination.
The AJ addressed each of the reasonable accommodations requested by
complainant: (a) a non-networked computer with Windows software in her
union office; (b) a �handicapped� parking space; (c) a listing in the
office personnel directory for the union office location and telephone
under her name; and (d) waiver of the requirement that she track her
official union time on a daily SSA Form 75. The AJ found that complainant
was provided with a parking space upon presenting her state-issued
�handicapped� license tags, and therefore declined to review request (b)
in her decision. With respect to the other requests, the AJ found that
complainant failed to establish a prima facie case of discrimination on
the basis of disability. Specifically, the AJ explained that complainant
submitted insufficient evidence to prove she was an individual with a
disability as a result of her claimed seizure disorder and memory lapses.
Even assuming that complainant was an individual with a disability, the
AJ reasoned that complainant failed to show how her requests would aid
or enable her to �function, participate, or compete� in her workplace.
Further, the AJ noted that complainant requested (a), (c), and (d),
prior to incurring her on-the-job injuries, and questioned whether the
requests had any nexus to her claimed disabilities.
In her analysis of complainant's religious compensatory time claim, the AJ
again found no prima facie case of sex, disability, or age discrimination.
Nonetheless, the AJ found a prima facie claim on the basis of reprisal,
noting that complainant filed or otherwise participated in numerous
claims of discrimination naming her current chain-of-command as the
responsible management officials.
When describing the articulated, nondiscriminatory reasons for the
agency's actions, the AJ noted that the Director of Regional Program
and Integrity Reviews (complainant's third-line supervisor) refused
to approve complainant's request for religious compensatory time for
December 7, 1995, because she failed to request approval to accrue the
leave in advance. He forwarded the request to the Deputy Director of DQB,
who approved 1� hours of compensatory time. Management explained that
complainant was not entitled to 2 hours on December 7, 1995, because
she could only accrue compensatory time until 6:00 p.m. that evening
and could not accrue compensatory time from 6:00 p.m. to 6:30 p.m. as
requested by complainant.
Complainant also had requested and been denied religious compensatory
leave for April 14, 1995, August 4, 1995, April 5, 1996, and May 3, 1996.
The agency noted that complainant was denied leave when she failed to
show how she would repay the leave requested in April and August 1995.
According to the agency, management instructed complainant to provide
a schedule of how complainant would repay the leave. When complainant
responded with the necessary information for her �Good Friday� (April 14,
1995) request, it was granted. On other dates, management explained that
it did not know what religious event required complainant's absence,
and requested complainant articulate the sincerely held religious
belief that required her absence. Complainant's religious compensatory
leave for those dates was not approved, because she never responded to
management's request.
Nonetheless, the AJ found that the agency's proffered reasoning was
a pretext for discrimination. The AJ referenced a January 21, 1994
memorandum instructing supervisors to be liberal in granting religious
compensatory time and leave, and to avoid any questions concerning
complainant's sincerely held religious beliefs. Although agency
officials claimed the regulation only applied in New York, and had never
been circulated to the Dallas office, the document's distribution list
included �All Assistant Regional Commissioners, All Area Directors, All
Directors, [and] All District Branch and Teleservice Managers.� Further,
the AJ noted that other employees in different regions received religious
compensatory time and leave without providing the information required by
complainant's chain-of-command, and without the 6:00 p.m. restriction on
earning religious compensatory time. In concluding that complainant was
subjected to reprisal discrimination, the AJ found that complainant was
subjected to standards not required of any other employees at the agency.
For relief, the AJ ordered the agency to provide complainant with the
religious compensatory time she was denied.
In its March 9, 1999 final decision, the agency disagreed with the
AJ's finding of discrimination. The agency explained that complainant
failed to establish a prima facie case on the basis of reprisal, because
she did not identify any similarly situated employees who received
better treatment. The agency found that the coworkers cited by the AJ
worked in different Districts, with different duties, and different
supervisors. Although one of the other employees was a �full-time�
union representative, the agency concluded that she was not similarly
situated due to her different supervisors and job title.
Even assuming that complainant established a prima facie case, the agency
found that complainant failed to prove pretext. According to the agency,
the January 21, 1994 memorandum only applied in New York, and did not
conflict with the controlling regulations for religious compensatory time
� HHS Instruction 550-11. Under this instruction, employees must make
their requests in advance of working or taking religious compensatory
time, must provide a schedule for how they will repay any leave taken,
and provide a statement of the sincerely held belief that requires the
employee's absence on the date in question. According to the agency,
when complainant did not comply with these guidelines, her requests
were denied. The agency notes several instances where it returned
requests for more information, and provided complainant with a copy
of the relevant regulations. When complainant provided the required
information, as she eventually submitted for her Good Friday, April 14,
1995 request, her leave was approved.
ANALYSIS AND FINDINGS
A. Abuse of Process
Abuse of process dismissals are appropriate only where there is a �clear
pattern of misuse of the process for ends other than that which it was
designed . . .� Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 5-17 (November 9, 1999) (citations
omitted). However, the Commission has a strong policy to preserve a
complainant's EEO rights whenever possible. Id.
Although complainant has raised the same issues in prior complaints, such
as official time for EEO representation and credit hours for union work,
the individual claims involve different dates, and therefore are not
identical in every respect. Further, complainant raised these issues
in the present complaint prior to their dismissal in other complaints,
i.e., before she learned that they were not properly raised in the EEO
process. Given these facts, together with the AJ's decision to address
several claims on their merit and find discrimination for one claim,
the Commission does not find that complainant attempted to use the EEO
process for illegitimate purposes. Therefore, we find that the dismissal
for abuse of process was improper.<3>
Nonetheless, many issues from the present complaints fail to state
a claim. The right to raise issues of official time or other matters
concerning complainant's status as an EEO representative lie with the
EEO complainant, not with her representative. See Lambert v. Social
Security Administration, EEOC Request No. 05970586 (October 8, 1998);
see also Lambert, EEOC Appeal No. 01972600, req. for recons. den., EEOC
Request No. 05990474. Claims (1) - (7), (9), (11) - (15), (18) - (21),
(25), (27), (28), (30)(b), (30)(c), and (30)(f), all involve complainant
receiving official time, credit time, or travel reimbursement for serving
as an EEO representative. These matters fail to state a claim and are
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1).
Similarly, the Commission will not review claims involving the denial of
official time or leave for union representational work. See Lambert, EEOC
Appeal No. 01972600, req. for recons. den., EEOC Request No. 05990474.
Such matters should be raised through the grievance process, not as
EEO complaints. See id. The denial of over tour compensation for union
representational work also fails to state a claim. See Lambert v. Social
Security Administration, EEOC Request No. 05990820 (November 8, 1999)
(citing Elliot v. United States Postal Service, EEOC Request No. 05960197
(November 13, 1997)). Claims (8), (10), (30), (30)(a), (30)(d), (30)(e),
(30)(g), (30)(h), and (33) involve such matters, fail to state a claim,
and are properly dismissed for failure to state a claim pursuant to 29
C.F.R. � 1614.107(a)(1).
Complainant also raises several issues concerning her OWCP filings in
claims (16), (17), and (36). Concerns with the agency's processing of OWCP
claims should be raised within the OWCP process, not with the Commission.
Such matters constitute a collateral attack on the OWCP process, and
fail to state a claim. See Walsh v. United States Postal Service, EEOC
Request No. 05980369 (March 29, 2001). Therefore, claims (16), (17),
and (36), fail to state a claim and are properly dismissed pursuant to
29 C.F.R. � 1614.107(a)(1).
In claim (24), complainant alleges harm from her first line supervisor's
questioning of the floor warden about complainant's whereabouts.
No comments were directed towards her, nor was complainant present when
her supervisor questioned the floor warden. Complainant suffered no
adverse action as a result of the supervisor's discussion with the floor
warden. Therefore, complainant suffered no harm to a term, condition,
or privilege of employment, and this matter fails to state a claim.
See Diaz v. Department of the Air Force, EEOC Request No. 05931049
(April 21, 1994) (defining aggrieved individual as one who suffers harm
to term, condition, or privilege of employment).
Claim (26) also fails to state a claim. Although the Commission
previously remanded this matter, it has since changed its stance on claims
involving criminal investigations. Compare Lambert v. Social Security
Administration, EEOC Appeal No. 01953628 (October 19, 1995) with Jones
v. Department of the Army, EEOC Request No. 05A00428 (March 1, 2002).
Complainant suffered no adverse action as a result of the investigation,
and the agency's part in initiating and conducting the investigation
fails to state a claim. See Jones v. Department of the Army, EEOC
Request No. 05A00428 (March 1, 2002). Therefore, we find that claim
(26) was properly dismissed for failure to state a claim pursuant to 29
C.F.R. � 1614.107(a)(1).
Concerning claim (32), the record reflects that complainant received
administrative leave and reimbursement for vision expenses. Therefore,
the Commission finds that complainant suffered no harm to a term,
condition, or privilege of employment, and claim (32) fails to state
a claim. Therefore, claim (32) is properly dismissed for failure to
state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
B. Nonselection
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.
The Commission finds that the AJ accurately analyzed this claim.
Complainant presented no evidence to show that the agency's reasoning
was a pretext for discrimination. Further, she has not shown that her
credentials were so �plainly superior� to those of the selectees as to
require a finding of pretext. See Gregory v. Department of Energy,
EEOC Appeal No. 01986248 (July 10, 2000), req. for recons. den. EEOC
Request No. 05A01038 (April 30, 2001) (citing Bauer v. Bailar, 647
F. 2d 1037, 1048 (10th Cir. 1981)). Accordingly, the AJ's finding of
no discrimination with respect to claim (34) was proper.
C. Reasonable Accommodation for an Individual with a Disability
Complainant requested four separate accommodations, as referenced above.
Since complainant does not dispute receipt of the assigned parking space,
the Commission also will not address this issue. Complainant contends
that she should have been provided with a computer for her union office,
a listing of her union office telephone number in the phone directory,
and an exemption from the requirement that union officers submit daily
forms (Form SSA-75) to track their official union duty time. Claims (22),
(23), (31), and (35), all concern these requested accommodations.
The Commission notes that the three requests still at issue concern the
provision of items to aid her performance of union duties. The parties
both have argued at length over whether the relevant CBA provisions
require the agency to provide complainant with a computer and telephone
directory listing for her union office or submit Form SSA-75 to daily
record official time.<4> These matters have to do with the agency's
obligations to union representatives, and do not state a claim within the
purview of the EEO Regulations. See Lambert, EEOC Appeal No. 01972600
(citing Spiegel v. Environmental Protection Agency, EEOC Request
No. 05960470 (January 5, 1998)), req. for recons. den., EEOC Request
No. 05990474. Such matters should be raised in the grievance process,
not the EEO process. Therefore, the Commission finds that claims (22),
(23), (31), and (35) fail to state a claim and are properly dismissed
pursuant to 29 C.F.R. � 1614.107(a)(1).
D. Religious Compensatory Time
Liability
Although the agency did not engage in religious discrimination by
asking complainant to identify the sincerely held religious belief
that required her absence, nonetheless, the Commission finds that the
agency's actions were taken in reprisal for complainant's prior protected
activity. To establish a prima facie claim of reprisal discrimination,
complainant need only show: (1) she engaged in prior protected activity;
(2) the acting agency official was aware of the protected activity;
(3) she was subsequently disadvantaged by an adverse action; and, (4)
there is a causal link. The causal connection may be shown by evidence
that the adverse action followed the protected activity within such a
period of time and in such a manner that a retaliatory motive is inferred.
Simens v. Department of Justice, EEOC Request No. 05950113 (March 28,
1996) (citations omitted).
Complainant clearly established a prima facie claim of discrimination in
the present case: she had engaged in recent, ongoing protected activity;
management was aware of her prior protected activity; and complainant
suffered an adverse action (the denial of leave and compensatory time)
contemporaneous with her protected activity. Complainant was required to
explain her religious beliefs, to identify how she would repay her leave,
to ask for her religious compensatory time in advance, and to restrict
her compensatory time accrual to 6:00 p.m. Complainant's management
began questioning complainant's leave while she had discrimination
claims pending, and was serving as an EEO representative in several
claims against the agency.<5> The record reflects that, agency-wide,
no such restrictions were imposed on other employees' use of religious
compensatory time and leave. Further, management written policy was to
avoid inquiries of an employee's religious beliefs, and to grant religious
leave and compensatory time liberally. After a careful review of the
record, the Commission concurs with the AJ's finding of discrimination
on the basis of reprisal concerning the denial of religious compensatory
time and leave.
Relief
The AJ ordered the agency to reimburse complainant for the religious
compensatory time she did not receive in 1995. The record indicates,
however, that complainant was removed from employment with the agency
in 1999.<6> If complainant is no longer an agency employee, then the
reimbursement of leave or compensatory time she was not allowed to take
would not be possible. If complainant is still employed by the agency,
then the agency must reimburse complainant for the � hour of religious
compensatory time she was denied on December 7, 1995, and reimburse
complainant for any annual leave or leave without pay taken, if any, as a
result of the agency's denial of religious compensatory leave on August 4,
1995, April 5, 1996, and May 3, 1996. Additionally, complainant requested
compensatory damages in her complaint, which the AJ failed to address.
Therefore, the decision must be remanded for proceedings on damages.
CONCLUSION
The agency's dismissal of claims (1) - (21), (24) - (28), (30)(a) -
(h), (32), (33), and (36), is AFFIRMED, albeit on different grounds.
The agency's finding of no discrimination with regard to claim (34)
also is AFFIRMED. The Commission finds that claims (22), (23), (31),
and (35) fail to state a claim, and thus, we AFFIRM the agency's finding
of no discrimination. The agency's decision finding no discrimination
for claim (29) is REVERSED, and the claim is REMANDED to the agency.
On remand, the agency must provide all relief for claim (29) as described
in the ORDER herein.
ORDER
The agency shall take the following actions:
1. Within thirty (30) calendar days of the date this decision becomes
final, if complainant is still an employee of the agency, the agency
shall reimburse complainant for the � hour of religious compensatory
time she was denied on December 7, 1995.
The agency shall reimburse complainant for any annual leave or leave
without pay taken, if any, as a result of the agency's denial of religious
compensatory leave on August 4, 1995, April 5, 1996, and May 3, 1996.
The agency is directed to submit a copy of the complaint file to the
Hearings Unit of the EEOC Dallas District Office within fifteen (15)
calendar days of the date this decision becomes final, and request
the assignment of an Administrative Judge (AJ) to decide the issue of
compensatory damages. The agency shall provide written notification
to the Compliance Officer at the address set forth below that the
complaint file has been transmitted to the Hearings Unit. Thereafter,
the AJ shall issue a decision on the issue of compensatory damages in
accordance with 29 C.F.R. � 1614.109,<7> and the agency shall issue a
final action on damages in accordance with � 1614.110. A copy of the
agency's final action on the issue of compensatory damages shall be sent
to the Compliance Officer as referenced herein.
The agency shall send, to the Compliance Officer as referenced herein,
a copy of evidence showing that it has reimbursed complainant with the
compensatory time and leave referred to in provisions 1 and 2 of this
Order and/or a copy of evidence showing that complainant is not an
agency employee.
POSTING ORDER (G0900)
The agency is ordered to post at its Dallas Regional Office 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 (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(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 (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action in
an appropriate United States District Court within ninety (90) calendar
days from the date that you receive this decision on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
If you file a civil action, you must name as the defendant in the
complaint the person who is the official agency head or department head,
identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. If you file
a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 11, 2002
__________________
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an order by the United States Equal
Employment Opportunity Commission dated ___________ which found that
a violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. has occurred at the agency's
Dallas Regional Office.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment.
This facility was found to have discriminated against an employee on the
basis of reprisal for prior EEO activity. The facility was ordered to
provide the employee with equitable relief, proven compensatory damages,
and all reasonable attorneys fees and costs incurred in the processing
of the issue.
This facility will comply with federal law and will not in any manner
restrain, interfere, coerce, or retaliate against any individual who
exercises his or her right to oppose practices made unlawful by, or
who participates in proceedings pursuant to, federal equal employment
opportunity law.
Date Posted: _____________________
Posting Expires: _________________
29 C.F.R. Part 1614
1For purposes of this decision, �over-tour� refers to hours worked in
excess of one's regular tour of duty for which credit hours, overtime,
or compensatory time may be available.
2Two individuals were selected for Team Leader positions under VAN 61-96.
3The Commission warns complainant, however, that continual filing of
these matters after receiving dismissals of the same issue from both
the agency and Commission may indicate abuse of the EEO process.
4The agency notes that complainant has a telephone listing for her normal
duty station.
5The agency cites to management testimony in the hearing transcript to
justify its inquiries. However, the agency failed to provide the relevant
portions of the hearing transcript, despite repeated requests from the
Commission. Therefore, the Commission gives these arguments no weight.
6Complainant has several complaints pending with an AJ in Hearing
Nos. 310-99-5644X and 310-A0-5014X.
7The AJ will apply this regulation to decide whether a hearing on the
issue of damages is appropriate.