01975632
06-02-2000
Dennis Ingham, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Dennis Ingham v. Department of Agriculture
01975632
June 2, 2000
Dennis Ingham, )
Complainant, )
)
v. )
) Appeal No. 01975632
Daniel R. Glickman, ) Agency No. 94-0701
Secretary, )
Department of Agriculture, )
Agency. )
____________________________________)
DECISION
INTRODUCTION
Complainant timely filed an appeal with the Commission from a final
decision of the agency concerning his complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of
1964, 42 U.S.C. � 2000e et seq. Pursuant to 64 Fed. Reg. 37,644, 37,
659 (1999) (to be codified at 29 C.F.R. � 1614.405), the Commission
accepts the complainant's appeal from the agency's final decision in
the above-entitled matter.<1>
ISSUES PRESENTED
Whether the agency discriminated against complainant on the basis of
gender by:
denying him the opportunity to attend training in October 1993;
not hiring him back as a forestry technician in the Watersmeet District
of the Ottawa National Forest for the 1994 summer season.
BACKGROUND
Complainant filed a complaint in which he identified the district ranger
(DR - male) and the outdoor recreation planner (ORP - female) as the
responsible officials. As relief, complainant seeks a permanent position
in the wilderness branch, as a GS-5 wilderness technician. Exhibit
(Ex.) 3. The agency investigated the complaint and issued a final
decision of no discrimination, from which complainant now appeals.
The incidents at issue in this complaint took place in the Watersmeet
District of the Ottawa National Forest. The Watersmeet district was
managed by the DR, who oversaw both the wilderness and recreational
branches of the district. The DR reported to the Ottawa Forest
Supervisor, who was not a party to this complaint. Directly beneath
the DR in the chain of command was the assistant district ranger (ADR -
male). Immediately below the ADR was the ORP. The ORP, in turn, directly
supervised two forest rangers (Ranger (1) and Ranger (2) - both male).
The agency hired complainant as a seasonal employee during the Summers of
1991, 1992, and 1993. For the first two years, he worked as a wilderness
aide, GS-3, in the wilderness branch of the district, under the direct
supervision of Ranger 1 and Ranger 2.
Complainant sought to be rehired for the Summer of 1993. The DR and the
ORP, however, arranged for the hiring of two female temporary employees
from other districts (the selectees). Exs. 7, 8, 9. They had originally
intended not to rehire complainant, but after they hired the selectees,
they were told that complainant had rehire rights, whereas the selectees
did not, and consequently, that complainant could bring a legal action
against the agency if he was not allowed to return for the 1993 season.
Exs. 9, 11, 13. Consequently, they relented and rehired complainant as
a GS-4 forestry technician, and assigned him to work in the recreation
branch, under a supervisory forestry technician (SFT - male). Ex. 6. The
ADR was the SFT's second-line supervisor, and was not in the ORP's direct
line of authority.
In October 1993, which marked the conclusion of the 1993 season,
complainant sought to attend a wilderness management training course, but
was not selected to participate in that course. In March of the following
year, he applied for seasonal work as a GS-4 forestry technician in the
recreation branch during the 1994 summer season, but was not hired back.
ANALYSIS AND FINDINGS
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
He must initially establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence,
that the agency's explanation is pretextual. St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Pavelka v. Department of the Navy,
EEOC Request No. 05950351 (December 14, 1995).
Denial of Training - October 1993
Complainant testified that the wilderness branch was offering a week-long
course on wilderness management training in October of 1993, and that
he applied for the training because he wanted to return to wilderness
from recreation. He stated that he received approval for training
in October 1993 from the ADR, but that the DR refused to sign off on
it. He also stated that a female employee from the recreation branch
was given the wilderness management training in September 1993. Ex. 6,
p. 5. The agency found in its final decision that complainant failed to
establish a prima facie case of sex discrimination because the female whom
complainant identified as a comparative was assigned to the wilderness
branch, not the recreation branch.
Although a showing that a comparative individual outside of one's
protected group was treated differently is generally sufficient to
establish the necessary inference of discrimination, such a showing is
not required to establish that inference. See O'Connor v. Consolidated
Coin Caters Corp., 507 U.S. 308, 312-13 (1996); Enforcement Guidance on
O'Connor v. Consolidated Coin Caters Corp., EEOC Notice No. 915.002,
n. 4 (September 18, 1996); Carson v. Bethlehem Steel Corp., 82 F.3d
157, 159 (7th Cir. 1996). In this case, it is enough to show that a
female employee was given the same training that complainant was denied,
within the same general time frame. We therefore find that complainant
has established a prima facie case of sex discrimination in connection
with the denial of wilderness management training in October 1993.
The agency articulated two reasons for denying complainant wilderness
management training. The DR stated that if the ADR had cleared
complainant for the training, he, the DR, would have said no because
the training was designated for employees in the wilderness branch,
and complainant was not in that branch. Ex. 7, p. 7. A personnel
officer testified that most training for temporaries was on-the-job, and
that unless there was a specific skill that management was looking for,
temporary employees were not sent for training. Ex. 15, p. 3. We find
that these reasons are ostensibly legitimate and nondiscriminatory.
Although complainant maintains that the female comparative was employed
in recreation rather than wilderness, he presents no testimonial or
documentary evidence to support this assertion. Likewise, he has not
presented any evidence which contradicts the testimony of the personnel
officer, who was not in the DR's chain of command, or which undermines
the personnel officer's credibility as a witness. We therefore conclude
that the agency did not discriminate against complainant on the basis of
sex when the DR denied complainant's request for wilderness management
training in October 1993. We now turn to the rehire allegation.
Refusal to Rehire - March 1994
The record establishes that complainant was not rehired for the 1994
season, while two female temporary employees were rehired. The agency
conceded that complainant established a prima facie case of sex
discrimination in connection with its refusal to rehire complainant for
the 1994 season. The DR's articulated reasons for not hiring complainant
back for the 1994 season were that complainant was unwilling or unable to
accept the shift in the agency's management orientation from recreation to
wilderness, and that there were budgetary constraints which limited the
number of temporary positions that could be filled for the 1994 summer
season. For the reasons discussed below, we find that both of these
reasons are contradicted by the record, and are not worthy of belief.
Reason (1) - Complainant's Refusal to Accept Policy Change.
In claiming that complainant could not accept the change in management's
orientation, the DR stated that complainant could not accept direction or
tolerate others' views. Ex. 7, p. 1. The DR claimed that complainant
had trouble taking direction from women, particularly the ORP. Ex. 7,
p. 8. The ORP testified that the policy was to return the forest to
its natural state, and that complainant was not "on board with the
concept." Ex. 8, p. 3. None of complainant's first-line supervisors,
however, ever perceived that this was the case. Ex. 10. P. 3; Ex. 11,
p. 1. The assistant ranger for administration (ARA - female) who was
directly supervised by the DR but under a different line of authority
than the ORP, stated that the ORP could not take it when complainant
expressed his disagreement with her on particular issues, and that the
DR reflexively sided with the ORP. Ex. 13, p. 5.
Next, the DR stated that complainant displayed a poor attitude while on
a firefighting detail in 1992. He testified that on complainant's 1992
performance appraisal, complainant's fire crew boss found his attitude
very poor. Ex. 7, p. 2. The ORP stated that complainant complained while
on a firefighting detail. Ex. 8, p. 4. In complainant's 1992 performance
evaluation, Ranger (1) indicated the fire detail was complainant's first,
that complainant needed to improve his physical conditioning, and that
complainant developed severe blistering of his feet while on the detail,
which may have affected his attitude. Ex. 17. This evaluation does not
say that complainant displayed a "poor attitude." The DR appears to have
intentionally misinterpreted complainant's 1992 performance evaluation.
He even admitted that the situation improved after the ADR had spoken
with complainant about the situation. Ex. 7, p. 2.
In addition, the DR testified that complainant displayed hostility
toward the public and openly complained about agency policies in the
presence of park visitors. The DR stated that, he received feedback
from complainant's co-workers that complainant was "short" with members
of the public when he was assigned to work the information booth, and
that at least once in 1992, complainant complained about the Forest
Service in public. Ex. 7, p. 2. The ADR testified that complainant
got along with his co-workers, but acknowledged that complainant was
"a little rough around the edges" in dealing with the public. The ADR
did not perceive this to be a problem, however. The ADR also noted
that complainant got along well with several women, that he questioned a
decision made by the ORP, and that the ORP did not like being questioned.
Ex. 9, p. 2. Ranger (1) testified that complainant's main job was
maintenance, and that he sometimes handled the information booth when
they were short-handed. He stated that complainant never had a problem
with the public and was very good in the information booth. He noted in
complainant's appraisal that complainant should have some public relations
training if he was going to be utilized in that role. Ranger (1) never
characterized complainant's need for public relations training as a
negative comment about complainant's ability. Ex. 11, pp. 2-3; Ex. 17.
Ranger (2) corroborated this assessment, noting that the ORP and the
DR misinterpreted Ranger (1)'s assessment. Ex. 12, p. 3. Ranger (2)
also noted that complainant supported the transition from recreation to
wilderness management, that he could not remember complainant having
a bad attitude with people, and that complainant got along with his
co-workers, both male and female. Ex. 12, pp. 2-3. Moreover, the DR
himself acknowledged that the alleged public-complaining incident was
informally reported to him and never documented. Ex. 7, p. 2. The fact
that there is no record of this incident, in our view, casts considerable
doubt on its authenticity, and upon the DR's credibility as a witness.
Finally, the DR asserted that complainant was not as well suited as
the two female rehires for the interpersonal aspects of the job that
wilderness management required. The DR stated that the two women who
were rehired had extensive public contact experience, and that such
experience was increasingly necessary in light of the reorientation
of the program toward wilderness management. Ex. 7, pp. 4-5. The DR
further testified that he did not believe that complainant could do any
of the seasonal jobs that the agency was hiring for in 1994. Ex. 7,
p. 5. He reiterated that complainant sometimes did not get along with
his co-workers. Ex. 7, p. 6. The ORP also stated that complainant did
not have sufficient skills in public relations, and stated that she
relied on the performance evaluation given by Ranger (1) in reaching
this conclusion. Ex. 8, pp. 2-4. The ADR, Ranger (1), Ranger (2), and
the SFT all contradicted this assessment, and both rangers stated that
they believed that complainant could have functioned in the wilderness
technician position as well as the selectees. Ex. 9, p. 2; Ex. 10, p. 1;
Ex. 11, p. 4; Ex. 12, pp. 2, 4. Again, it appears as though the DR,
as well as the ORP, deliberately mischaracterized complainant's 1992
performance appraisal, finding criticism where none existed.
Reason (2) - Budgetary constraints
Both the DR and the ORP testified that, by the time the 1994 season
came around, there were budgetary constraints in place which limited
the number of temporary positions that could be filled. Ex. 7, p. 3;
Ex. 8, p. 2. The DR stated that he would have hired complainant as a
recreation technician if there was enough money in the budget to do so.
Ex. 7, pp. 5, 8. The ARA testified, however, that she did not think
that this was a valid reason for not rehiring complainant. She stated
that she was in charge of personnel, and that, in her opinion, there
was enough money in the recreation branch budget to rehire complainant,
but that the money that had been earmarked for recreation was shifted
to other areas. She also noted that the recreation branch was still
short-handed during the 1994 summer season. Ex. 13, p. 2.
Evidence of Pretext
Thus, both of the reasons that the agency gave for not rehiring
complainant back for 1994 are contradicted by the testimony of the
people who supervised complainant on a daily basis and were most
familiar with his work, as well as by administrative employees outside
of the ORP's chain of command. The agency acknowledged this in its final
decision, noting that there were two factions in the Watersmeet district.
One faction consisted of the DR and the ORP. The other faction consisted
of long-term employees, both male and female, who were not supportive
of the DR's management style or his policies, and who perceived that
the DR expressed favoritism toward females. The agency stated that
there was testimony on both sides of the pretext argument, but found
no conclusive evidence that complainant's gender was the motivating
factor in the DR's refusal to rehire him for the 1994 summer season.
We again disagree with the agency.
While disbelief of the agency's articulated reasons does not automatically
compel a finding of discrimination as a matter of law, disbelief of
the reasons put forward by the agency, together with the elements of
the prima facie case, may suffice to show intentional discrimination.
EEOC Enforcement Guidance on St. Mary's Honor Center v. Hicks (April 12,
1994); Huerta v. Department of the Air Force, EEOC Request No. 05930802
(April 1, 1994). There is substantial evidence in the record that the
DR harbored a discriminatory animus toward longtime male employees,
and that the DR and the ORP tried to avoid hiring complainant for the
1993 season under circumstances that may well have been discriminatory
if their attempt had succeeded.
The DR's Documented Bias Against Long-Time Male Employees
In its final decision, the agency noted that the faction who perceived
that the DR demonstrated favoritism was much larger than the faction
comprising the DR and the ORP. Inexplicably however, the agency failed
to give adequate consideration to the number of witnesses who testified
as to the DR's biased attitude, let alone to those witnesses' statements.
The ADR testified that the DR had a problem getting along with older
white males, and that DR almost always accepted the ORP's version of
events in disputes that came up, notwithstanding that the ORP was the
ADR's subordinate. Ex. 9, pp. 2-3. The ADR also testified that the
DR undercut his supervision of the ORP and other female subordinates,
and that he constantly criticized him for "not being sensitive enough
to women." Ex. 9, p. 4-5. The SFT testified that, while serving as the
local union president, he became aware of a dispute involving the DR in
which the DR granted training to a female employee, but denied the same
training to a male. He also stated that the DR unsuccessfully tried
to avoid hiring him for a permanent position, and reiterated his belief
that discrimination against white males in the Watersmeet District was
ongoing. Ex. 10, pp. 2, 4.
Ranger (1) testified that the DR threatened him and Ranger (2) with
reprimand letters if they did not volunteer to work in the nursery, which
they were not required to do, and that the DR held up his noncompetitive
promotion while giving the ORP a noncompetitive promotion. Ex. 11, p. 4.
Both rangers opined that the DR discriminated against complainant because
of his race in not hiring him, pointing out that the DR did not consult
them on the matter. Ex. 11; Ex. 12.
Numerous witnesses testified that the DR referred to the longtime male
employees as the "old boy network," in a disparaging and demeaning manner.
Ex. 9, p. 3; Ex. 11, pp. 4-5; Ex. 13, p. 4. Ranger (2) stated that
it got to the point where the ADR could not discipline or say anything
negative about his female employees. Ex. 12, p. 5. The ARA testified
that complainant had been discriminated against when he was not hired
back in 1994, that the DR maintained a "protective ring" around the ORP
and other female employees, and that the DR constantly reprimanded the
two rangers every time they had a disagreement with the ORP, who was their
first-level supervisor. Ex. 13, pp. 3-4. The ARA also testified that the
DR would typically walk right past a white male and ignore him, whereas
he would greet and have a conversation with a female who happened to be
standing behind the male. Ex. 13, p. 4. The Budget Analyst testified
that the DR harassed the ADR for years, and that he tried to move the
two rangers out and replace them with females. Ex. 16, pp. 2-3.
The DR himself referred to the longtime males in the district as the "old
boy network." Ex. 7, p. 9. He acknowledged that there was a perception
that he favored women, but stated that it was because the women took
advantage of his open door policy and spoke up at meetings while the men
just sat silently. Ex. 7, p. 9. Although the DR denied that he expressed
favoritism toward women, there is overwhelming testimony to the contrary.
The Aborted 1993 Hiring Decision
The ADR testified that the DR and the ORP wanted to avoid hiring
complainant for the 1993 summer season, so that they could hire the two
selectees at that time. Both selectees were assigned to other districts,
and consequently did not have the rehire right that complainant had.
Neither the DR nor the ORP discussed the matter with the ADR, and when the
ADR found out about it, he told them that they "could not dump a veteran
with good ratings." According to the ADR, they hired the selectees
anyway. The ADR stated that they hired complainant after bringing the
selectees aboard, in order to avoid having legal action taken against
them. Ex. 9, pp. 6-7. The ADR's testimony was corroborated by the ARA,
ranger (1), the personnel officer, and a personnel specialist. Ex. 11,
p. 4; Ex. 13, pp. 2-3; Ex. 14, pp. 1-2; Ex. 15, p. 2. Moreover, the DR
and the ORP admitted that they were attempting to bring the selectees
aboard, and that they probably would not have rehired complainant if no
one had complained. Ex. 7, pp. 7-8; Ex. 8, pp. 5-6.
While the agency cited the Supreme Court's decision in St. Mary's Honor
Center v. Hicks, it failed to give sufficient weight to the amount
and credibility of the testimonial evidence demonstrative of pretext.
That evidence is more than sufficient to establish the existence of a
discriminatory motive on the part of the DR in not rehiring complainant
for the 1994 Summer season. While there is evidence that the DR may
have considered the agency's affirmative employment goals, the agency
has not raised reliance on an affirmative employment plan as a defense
in its final decision. We will therefore not address this issue.
Remedies
In light of the foregoing, we find that the DR discriminated against
complainant on the basis of gender by not rehiring him as a seasonal
technician in March 1994. We now turn to the issue of remedial relief.
Once discrimination is found, the agency is required to make complainant
"whole" by restoring him to a position where he would have been were it
not for unlawful discrimination. Franks v. Bowman Transportation Co.,
424 U.S. 747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405,
418 (1975); Wrigley v. United States Postal Service, EEOC Petition
No. 04950005 (February 15, 1996). In this case, complainant is clearly
entitled to the salary and benefits that he would have earned as a
GS-4 forestry technician during the summer of 1994. If he found other
employment during that period, then he is entitled to the difference
between what he would have earned as a seasonal forestry technician
with the agency, and his actual wages. See 42 U.S.C. � 2000e-5(g);
Cotton v. Department of the Air Force, EEOC Appeal No. 01932096 (April
21 1994). He is also entitled to present a claim for compensatory
damages. See West v. Gibson, 119 S.Ct. 1906 (1999).<2> We will enter an
order directing the agency to provide the appropriate relief, including
training for the DR.
In his complaint, complainant indicated that he wanted a permanent
position in the Watersmeet District. Ex. 3. He stated that if he
kept applying for seasonal positions, the DR or the ORP would find
some way to reject him. Consequently, he asked for an appointment to
a permanent position as a GS-5 wilderness ranger. Ex. 6, p. 9. The
record does not contain any documents or testimony pertinent to the
issue of how temporary employees were converted to permanent status.
Complainant has not pointed to the existence of any agency policy or
practice pertaining to the conversion of temporary employees. Without
such evidence, the assumption that complainant would have been given a
permanent appointment is speculative. See Ritchie v. United States Postal
Service, EEOC Request No. 05980501 (February 11, 1999) (the Commission has
been reluctant to assume that an individual, absent a discriminatory act,
would have subsequently received a competitive promotion). Accordingly,
we find that complainant is not entitled to a permanent appointment.
CONCLUSION
Based upon the record, and for the foregoing reasons, the Commission
finds that the agency discriminated against complainant on the basis of
gender when it failed to rehire him as a seasonal forestry technician,
at the Watersmeet District of the Ottawa National Forest, in March 1994.
The agency's final decision dated May 30, 1997, is affirmed in part and
reversed in part. The agency shall implement the relief set forth in
our order below.
ORDER (D1199)
The agency is ORDERED to take the following remedial action:
The agency shall determine the appropriate amount of back pay, interest,
and other benefits due complainant, pursuant to 29 C.F.R. �1614.501,
for the period in 1994 during which he would have been employed as a
seasonal GS-4 forestry technician in the Watersmeet District of the
Ottawa National Forest. The agency shall complete this action within
sixty (60) calendar days of the date that this decision becomes final.
The agency shall accept and process complainant's claim for compensatory
damages. The agency shall notify complainant, in writing, that he has the
right to present objective evidence in support of his claim for damages.
Such evidence may include statements from complainant and other witnesses
which provide detailed information on the physical manifestations of any
mental or emotional distress, the intensity and duration of such symptoms,
and how such stress was causally related to the DR's discriminatory
refusal to rehire him in March 1994. The agency shall complete this action
within sixty (60) days of the date that this decision becomes final.
The agency shall provide sixteen (16) hours of training to the District
Ranger regarding Federal equal employment opportunity laws.
The agency shall post at the Watersmeet District of the Ottawa National
Forest 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.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of
the agency's calculation of back pay, compensatory damages, and other
benefits due complainant, including evidence that the corrective action
has been implemented.
The complainant shall cooperate in the agency's efforts to compute
the amount of back pay and benefits due, and shall provide all relevant
information requested by the agency. If there is a dispute regarding the
exact amount of back pay and/or benefits, the agency shall issue a check
to the complainant for the undisputed amount within sixty (60) calendar
days of the date the agency determines the amount it believes to be due.
The complainant may petition for enforcement or clarification of the
amount in dispute. The petition for clarification or enforcement must
be filed with the Compliance Officer, at the address referenced in the
statement entitled "Implementation of the Commission's Decision."
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's calculation of backpay and other benefits due complainant,
including evidence that the corrective action has been implemented.
ATTORNEY'S FEES (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (Q0400)
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 filed your appeal with the Commission.
If you file a civil action, YOU MUST NAME AS THE DEFENDANT IN THE
COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD OR DEPARTMENT HEAD,
IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND OFFICIAL TITLE.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (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:
06-02-00
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2Where a complainant makes claim for compensatory damages, the agency
should request that the complainant provide objective evidence of
the alleged damages. See Benton v. Department of Defense, EEOC Appeal
No. 01932422 (December 10, 1993). Such evidence may include:
A statement by complainant describing her emotional distress; statements
from witnesses, both on and off the job, describing the distress. To
properly explain the emotional distress, such statements should include
detailed information on physical or behavioral manifestations of the
distress, information on the duration of the distress, and examples of
how the distress affected complainant day to day, both on and off the
job. In addition, the agency should have asked complainant to provide
objective and other evidence linking ... the distress to the unlawful
discrimination....
Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5,
1993).