01982655_01986842
09-04-2001
Dorothy L. Toman, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, (Internal Revenue Service) Agency.
Dorothy L. Toman v. Department of Treasury
01982655 & 01986842
September 4, 2001
.
Dorothy L. Toman,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
(Internal Revenue Service)
Agency.
Appeal No. 01982655, 01986842
Agency No. 97-3176 , 97-3237 , 97-3111, 98-3003
DECISION
Dorothy L. Toman (complainant) timely initiated an appeal from a final
agency decision (FAD) concerning her complaint of unlawful 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 appeal is accepted
pursuant to 29 C.F.R. � 1614.405. For the sake of administrative economy,
the appeals are hereby consolidated.
In complaints filed on April 18, 1997 and July 1, 1997 (complaints 1
and 2) (EEOC Appeal No. 01982655), complainant alleged that she was
discriminated against and harassed on the basis of retaliation (prior
EEO activity) when:
(1) on or about February 4, 1997, she was issued a performance evaluation
containing a lower performance rating than her prior rating;
on or about March 3, 1997, her supervisor displayed a phrase which read
�The beatings will continue until morale improves;�
on or about March 10, 1997, her supervisor, while speaking on the phone,
was overheard stating she would sue complainant and interfere with
complainant's job opportunities;
her supervisor �suggested� to her that complainant had not completed
assignments in a timely fashion;
her supervisor removed and destroyed outdated information from
complainant's personnel file;
on or about April 14, 1997, complainant was denied availability pay;
she was ordered out of her supervisor's office;
on or about April 15, 1997, the agency suggested that complainant
contact an Organization Development Specialist (ODS) for assistance
with her alleged communication problem;
on or about May 2, 1997, complainant was advised that she was receiving
low scores on the review of her work but was not advised how she could
improve;
on or about May 2, 1997, the complainant was relieved of responsibility
for a project;
she was assigned a lower graded work assignment;
she was not assigned as Acting Group Manager.
In complaints filed on February 5, 1997 and October 6, 1997 (complaints
3 and 4) (EEOC Appeal No. 01986842), complainant alleged that she was
discriminated and subjected to harassment on the basis of reprisal
(prior EEO activity) when:
she was transferred to the Waukesha Office in mid-November 1996;
on January 25, 1996, a male coworker (Employee A) drove recklessly
toward the complainant;
on August 13, 1996, the Division Chief allegedly failed to accommodate
(by providing a place to lie down) the complainant's physical condition
while she waited to testify at Employee B's EEO hearing;
on December 23, 1996, she was told that the Division Chief wanted to
meet with her to discuss testimony she gave at Employee B's EEO hearing
(the meeting never took place);
in September 1996, Employee A gave her the �cold shoulder� and called
her a �blight�, because complainant testified at Employee B's hearing;
the Division Chief stopped greeting the complainant in the halls;
on or about August 22, 1997, she was placed on administrative leave
and then relieved of her gun and government car;
on or about September 17, 1997, she was offered a Supervisory Referral
to the Employee Assistance Program.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Special Agent, GS-1811-13, in the Internal Revenue Service, Midwest
District Office at the Milwaukee, Wisconsin facility.
Believing she was a victim of discrimination, complainant sought EEO
counseling and subsequently filed formal complaints on April 18, 1997
(Complaint 1-Complaint No. 97-3176 encompassing claims 1 -5 above),
July 1, 1997 (Complaint 2-Complaint No. 97-3111 encompassing claims
6-12 above), February 5, 1997 (Complaint 3-Complaint No. 97-3111
encompassing claims 13-18 above), and October 6, 1997 (Complaint
4-Complaint No. 98-3003 encompassing claims 19-20 above). Complaints
1 and 2 were investigated separately from Complaints 3 and 4. At the
conclusion of the investigation, complainant was informed of her right to
request a hearing before an EEOC Administrative Judge or alternatively,
to receive a final decision by the agency. Complainant requested that
the agency issue a final decision.
In FAD 1 concerning Complaints 1 and 2,the agency concluded that
complainant failed to raise a prima facie case of harassment based on
retaliation. Specifically, the agency noted that complainant has not
shown the acts in question were motivated by her prior EEO activity,
or that the acts had the purpose or effect of creating a hostile work
environment.
In FAD 2 concerning Complaints 3 and 4, the agency concluded that the
evidence of record is not sufficient to support complainant's claims
that the actions taken by the agency were in reprisal for complainant's
prior participation in the EEO complaint process. Moreover, the agency
concluded that complainant established a prima facie case of retaliation,
but the agency has articulated legitimate, nondiscriminatory reasons for
its actions. The agency also concluded that complainant failed to provide
any evidence to establish pretext. Further, the agency concluded that
complainant failed to establish a claim of harassment based on her prior
participation in the EEO complaint process. Specifically, the agency
found that these incidents, even taken together, were not sufficiently
severe or pervasive to alter the conditions of complainant's employment
or to create an abusive work environment.
CONTENTIONS ON APPEAL
On appeal, the agency contends that a negative evaluation, if accompanied
by no other negative consequences, is not in itself an adverse employment
action. The agency asserts that complainant's allegation that her
lower evaluation prevented her from receiving an award, is not true.
The agency states that, as noted in complainant's manager's affidavits,
the awards program was changed for Fiscal Year 1997, which controlled
all evaluations from October 1, 1996, through September 30, 1997,
and awards were not tied to performance ratings, but rather to acts
and accomplishments. The agency argues that the complainant's 1996
evaluation did not itself directly affect complainant's compensation,
terms, conditions, or privileges of employment. Also, the agency alleges
that complainant's allegation that a lower performance rating that she
received on her evaluation might have an adverse impact on her ranking
for a future promotion, demonstrates no more than a mere �tangential�
effect on a subsequent personnel action.
The agency further contends that this was not the first year that
complainant had received a lower evaluation than the year before, noting
that complainant's evaluation for 1994 was higher than the evaluation that
she received in 1995. Further, the agency explains that complainant was
not the only employee whose rating went down as a result of the emphasis
on the �3" concept, a new policy requiring managers to keep evaluations
in line with the �3"concept. The agency asserts that ratings higher
than �3" had to be supported by a narrative describing the performance
that justified them. Further, the agency indicates that during 1996,
complainant did not engage in the types of activities that would support
a higher rating.
Regarding claim (2), the agency contends that this is not adverse
treatment for purposes of a retaliation claim under Title VII.
Furthermore, the posting of the message falls within the category of
actions that are not ultimate employment decisions.
Regarding claim (3), the agency indicates that complainant's supervisor
does not recall making the specific comments. However, the agency
noted that complainant's supervisor admited that she was upset upon
finding out that a complaint had been filed against her for posting
the �beating� message on the flip chart, and she admits that her voice
was unintentionally raised. The agency contends that this incident did
not constitute an ultimate employment decision. Further, the agency
contends that while it may be that complainant's supervisor's comment
on the telephone did not constitute ideal management practices, neither
did it constitute an adverse employment action.
Regarding claims (4) and (5), the agency contends that those actions
did not rise to the level of �adverse employment actions.� The agency
noted that those actions did not affect complainant's compensation,
terms, conditions, or privileges of employment. The agency concluded
that those actions were not an ultimate employment decision. Also,
regarding claim (6), the agency noted that denial of availability pay,
was not an ultimate employment decision.
Regarding claim (7), the agency contends that the alleged action,
complainant's supervisor ordering complainant out of her office, did not
reach the level of adverse treatment that Title VII can be called upon
to remedy. The agency noted that Title VII was not designed to end all
conflicts between employees and managers.
Regarding claim (8), the agency asserts that the purpose of the referral
was to help complainant and complainant's supervisor to communicate
with each other better. The agency contends that the action was not
directed at the subordinate employee any more than it was directed at
the manager. The agency found that the referral did not have the type of
impact on the terms or conditions of the complainant's employment that
creates a cognizable claim under the retaliation provisions of Title VII.
Regarding claim (9), the agency contends that was not an
adverse employment action for purposes of a Title VII cause of
action. Furthermore, the agency contends that the complainant's work
review contained specific criticisms of her work with respect to time
management and other issues.
Further, the agency contends that regarding complainant's allegations,
(10), (11), (12), concerning complainant's assignments, there is no
evidence that anything negative ever happened to complainant as a result
of receiving lower-graded work. The agency also contends that there is no
evidence that complainant was ever harmed by not receiving acting manager
assignments. Specifically, the agency contends that complainant does not
even allege that she ever asked and was denied the opportunity to perform
the duties of acting manager. The agency contends that complainant cannot
show that she has ever been affected by an ultimate action.
Regarding claim (13), the agency asserts that the complainant's transfer
from the Milwaukee headquarters office, to the Waukesha post-of-duty
(POD), was a part of an overall reorganization of the relevant Criminal
Investigation Division (CID) branch. The agency asserts that during
a conversation between complainant and the Branch Chief, complainant
stated that she did not have a problem with the transfer.
Regarding claim (14), the agency contends that the evidence simply
does not substantiate complainant's allegations in regard to this
matter. The other pedestrian employee involved in the matter told the
current Branch Chief that the incident amounted to a joke. The agency
concluded that there is no evidence to connect Employee A's conduct with
complainant's protected activity.
Regarding claim (15), the agency contends that the Group Manager suggested
complainant go to the health unit where she could lay down and gain
relief, and complainant did go to the health to await her turn to testify.
Regarding claim (16), the agency contends that when complainant indicated
her uneasiness with such a meeting, the meeting was canceled by the
agency.
Regarding claim (17), the agency contends that the employee who allegedly
heard the statement by Employee A has not corroborated complainant's
rendition.
Regarding claim (18), the agency contends that Kelly v. Postmaster
General, EEOC Appeal No. 01941599 (1984), removes this issue from
consideration in this matter.
Regarding claim (19), the agency contends that complainant was placed
on administrative leave following consultation with the Agency's Labor
Relations Office, and such action was based upon workplace safety
concerns.
Regarding claim (20), the agency contends that the referral states that
complainant would be allowed to perform the full range of the Special
Agent position once she received medical certification of her emotional
stability. The agency also contends that complainant was also offered
alternative work assignments during any interim period.
Complainant makes no new contentions on appeal.
ANALYSIS AND FINDINGS
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he or she was subjected to adverse treatment by the agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion is
unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).
A single incident or group of isolated incidents will not be regarded
as discriminatory harassment unless the conduct is severe. Walker
v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the
harassment is sufficiently severe to trigger a violation of Title VII
must be determined by looking at all the circumstances, including the
frequency of the discriminatory conduct, its severity, whether it is
physically threatening or humiliating, or a mere offensive utterance, and
whether it unreasonably interferes with an employee's work performance.
Harris v. Forklift Systems, 510 U.S. 17 (1993).
The record reveals that complainant establishes a prima facie case
of retaliation. Complainant engaged in a protected activity.
She was called as a witness in an EEO hearing of another employee
in August of 1996. The agency was aware of her protected activity,
and acknowledges that complainant's supervisor became aware of the
complainant's EEO activity on January 13, 1997. Further, complainant
was subjected to adverse treatment that affected her terms, conditions
or privilege of employment. For example, on January 29, 1997, she was
told by management that she would be receiving some �3s" on her 1996
performance appraisal. A term, condition, or privilege of employment
has been held in Commission decisions to include, inter alia, promotion,
demotion, discipline, reasonable accommodation, appraisals, awards,
training, benefit, assignments, overtime, leave, tours of duty, etc. Cobb
v. Department of the Treasury, EEOC Appeal No. 05970077 (March 13, 1997).
The record also reveals that complainant served as a witness in Employee
A's EEO case on August 13, 1996, and filed formal complaints on February
5, 1997; April 18, 1997; July 1, 1997; and October 6, 1997. The Supreme
Court has stated that in cases that accept mere temporal proximity between
an employer's knowledge of protected activity and an adverse employment
action as sufficient evidence of causality to establish a prima facie
case, there must be evidence that the temporal proximity was �very close.�
Clark County School District v. Breeden, 532 U.S. ___ (2001). In this
case, there is ample evidence that all of the responsible management
officials took adverse action against complainant within a very close
period of learning that complainant had engaged in protected activity.
In the present case, we note that the referenced responsible official was
admittedly aware of complainant's prior EEO activity, which included
complainant's protected activity in an EEO hearing as a witness.
The retaliatory incidents began within a short period of time (3 days)
after complainant's supervisor became aware of complainant's protected
activity, when complainant received an evaluation which was lower than
other years, and continued until May 1997. These actions, alone or in
combination, were adverse in nature, and when considered in their entirety
based on the complainant's testimony discussed below, are sufficient to
establish the patterned and pervasive atmosphere necessary to demonstrate
retaliatory harassment amounting to a hostile work environment. See Mc
Kinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).
The record shows that complainant's supervisor was upset with complainant
because complainant filed a EEO complaint and mentioned her in that
complaint. Further, the record shows that complainant's supervisor
threatened complainant in a very hostile manner that altered complainant's
terms and conditions of employment, when for example, she issued the low
performance evaluation, lower graded work and denied availability pay.
Moreover, the record shows that the harassment was ongoing and continuous,
claims (1) - (12) occurred consecutively over a 3 month period.
We also find that all the incidents described by complainant were as
a whole, sufficiently severe and pervasive to establish harassment.
The Commission has stated that adverse actions need not qualify
as �ultimate employment actions� or materially affect the terms and
conditions of employment to constitute retaliation. See EEOC Compliance
Manual Section 8, �Retaliation;� No. 915.003 (May 20, 1998), p.8-15.
Moreover, in Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993),
the Supreme Court found that harassment is actionable, even absent a claim
that an agency's action harmed complainant in a specific term, condition
or privilege of employment, as long as the complainant can otherwise
demonstrate that the conduct was engaged for the purpose of creating
a hostile work environment, and that conduct is sufficiently severe or
pervasive as to alter the conditions of the complainant's employment.
Complainant testified that her entire world has changed in the short
time frame since she participated as a witness in the EEO hearing.
Complainant noted that she has encountered open
hostility from management since she testified. Further, complainant
testified that prior to August 13, 1996, she had always received good
to excellent performance reviews. Specifically, complainant noted that
after the hearing, a sequence of events began that she can only describe
as downward. For example, she was transferred to the Waukesha office,
against her will. Complainant noted that after the EEO hearing, her
performance at work is rated only �adequate,� and everything she does
is questioned by management. Complainant noted that after her protected
activity, her supervisor treated her in a disrespectful and outright
hostile manner. For example, complainant argued that on or about April
14, 1997, her supervisor indicated that she was upset because complainant
mentioned her in an EEO complaint. During the same meeting, complainant's
supervisor denied complainant availability pay and shouted at complainant
in a derogatory fashion.
Complainant also testified that her supervisor's attitude towards her
directly impacted her terms and conditions of employment, because her
supervisor is the one responsible for giving her guidance, allocating
assignments, and reviewing her work performance. Complainant testified
that she is reluctant to ask her supervisor any questions because of
her supervisor's outbursts which have been directed at her. Further,
complainant noted that other agents, who have not participated in the
EEO process, are not treated in a hostile fashion.
The essence of the agency's response to complainant's contentions is
that the issues raised are not ultimate employment actions. However,
as noted above, claims need not qualify as �ultimate�
employment actions� to constitute retaliatory harassment. Furthermore,
the agency did little to dispute complainant's descriptions of the
relevant events. Indeed, complainant's supervisor acknowledged that
she was unhappy about complainant's EEO activity and that she spoke
of her displeasure at the office in a loud voice. Although the agency
relies on a new appraisal policy to justify complainant's lower rating,
we find that the totality of the evidence, in particular, the admitted
negative comments concerning EEO activity made by complainant's supervisor
establishes that complainant was subjected to retaliation.
In addition complainant testified that she was reassigned, put on
administrative leave, and relieved of her gun and government vehicle.
Complainant also alleged that she was intimated by co-workers, asked to
meet with the Division Chief regarding the testimony she presented in
Employee A's EEO case, required to seek assistance through EAP or lose
her job, escorted out of the workplace in front of her co-workers by an
official who had his gun displayed, blamed for conducting an improper
undercover operation, and denied an accommodation to rest her back while
waiting to testify in Employee A's case. Those things are sufficiently
severe and pervasive to be considered harassing in nature.
The record is also clear that some of complainant's co-workers tried
to intimidate her. One co-worker used her car and siren and approached
complainant after she testified against him. Another co-worker was heard
questioning the veracity of the testimony she provided. Complainant also
received reports of co-workers statements that they were going to get
copies of her testimony. That is strong evidence that complainant was
intimidated because of her involvement in EEO activity. The record is
also clear that the Division Chief wanted to schedule a meeting with
complainant to discuss the veracity of her testimony. Such actions by
such a high official, even if the meeting never took place as in the case
here, would have a chilling effect on complainant's option to exercise
her rights in the EEO process in the future. After complainant first
participated in the EEO process, employees at the agency began to treat
her differently. As such, complainant's workplace demeanor changed so
the agency required her to seek EAP counseling or lose her job. Again,
we find this to be clear evidence of reprisal. We also find that the
Group Manager's blaming complainant for conducting an improper undercover
operation and the agency's overreaction in escorting complainant out of
the office in front of her co-workers by an official displaying a weapon
to be evidence of reprisal. Accordingly, we find that complainant has
succeeded in establishing retaliatory harassment.
Regarding the harassment by coworkers, the agency is liable if it knew
or should have known of the misconduct and failed to take immediate
and appropriate corrective action. Policy Guidance on Current Issues
of Sexual Harassment, EEOC Notice No. N-915-050 at 29-30 (March 19,
1990); Owens v. Department of Transportation, EEOC Request No. 05940824
(September 5, 1996).
Regarding the harassment that created a hostile work environment
perpetuated by agency officials, the agency is liable unless it can
prove that: (1) it exercised reasonable care to prevent and correct
promptly any harassment, and (2) the employee unreasonably failed to take
advantage of any preventative or corrective opportunities provided by the
employer or to avoid harm otherwise. Faragher v. City of Boca Raton,
524 U.S. 775 (1998). The first prong generally requires the agency
to establish, disseminate, and enforce an anti-harassment policy and
complaint procedure (above and beyond the EEO process enunciated in 29
C.F.R. 1614). See Enforcement Guidance: Vicarious Liability for Unlawful
Harassment by Supervisors, EEOC Notice N-915.002 (June 18, 1999).
In this case, there is no evidence that the agency took any action upon
learning of the harassment perpetuated by complainant's co-workers.
The agency presented no proof that it established, disseminated,
and enforced an anti-harassment policy. For that reason, we find that
the agency is liable to complainant for the harassing actions of her
supervisor and co-workers.
CONCLUSION
Therefore, after a careful review of the record, the agency's response,
and arguments and evidence not specifically addressed in this decision,
we REVERSE the agency's final decision and REMAND this case to the agency
to take remedial actions in accordance with this decision and ORDER below.
ORDER
The agency is ORDERED to take the following remedial actions:
The agency shall take corrective, curative and preventative action to
ensure that reprisal discrimination does not recur. This shall include,
but is not limited to, providing training on employment discrimination
laws for the agency officials involved in the complaint. Within thirty
(30) calendar days of the date the training is completed, the agency shall
submit to the compliance officer appropriate documentation evidencing
completion of such training.
The agency shall take whatever actions it deems necessary, including
but not limited to the actions set forth below, to ensure that employees
are not subjected to harassment in the future.
The agency shall conduct training for Responsible Officials, as well
as Employee A, addressing their responsibility under equal employment
opportunity law. The training shall place special emphasis on prevention
and elimination of harassment.
Within thirty (30) calendar days the agency shall give back complainant
her gun and her government car.
Within ninety (90) calendar days of the date this decision becomes final,
the agency shall ensure that complainant return to the Milwaukee office,
and that complainant's supervisor no longer has any supervisory or
managerial authority over complainant, at any level or at any time. This
order shall be carried out without altering complainant's job duties,
unless she agrees to such changes.
Within thirty (30) calendar days the agency shall remove all negative
comments concerning complainant's protected activity from complainant's
personnel file and from any other employee file.
Within thirty (30) calendar days the agency shall expunge complainant's
February 1997 �3" Performance Evaluation and replace it with a rating
of �4.�
The issues of compensatory damages and attorney's fees and costs are
REMANDED to the agency. The agency shall conduct a supplemental
investigation of the compensatory damages issue. Complainant,
through counsel, shall submit a request for attorney's fees and costs
in accordance with the Attorney's Fees paragraph set forth below.
No later than sixty (60) after the agency's receipt of the attorney's
fees statement and supporting affidavit, the agency shall issue a
final agency decision addressing the issues of attorney's fees, costs,
and compensatory damages. The agency shall submit a copy of the final
decision to the Compliance Officer at the address set forth below.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled �Implementation of the Commission's
Decision.
POSTING ORDER (G0900)
The agency is ordered to post at its Waukesha, Wisconsin facility 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.
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.
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.
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, you must name as the defendant in
the complaint the person who is the official agency head or department
head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (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 Hadden, Director
Office of Federal Operations
September 4, 2001
_______________________
Date
______________
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 Department of
Treasury, the Internal Revenue Service, Waukesha, Wisconsin (facility).
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.
The Department of Treasury supports and will comply with such federal law
and will not take action against individuals because they have exercised
their rights under law.
The Department of Treasury was found to have discriminated on the
basis of prior protected activity when it subjected complainant to
harassment and the agency has been ordered to: (1) take corrective,
curative and preventative action to ensure that reprisal discrimination
does not occur; (2) take corrective and preventative action to ensure a
place free of harassment (3) remove complainant from her supervisor's
chain of command and return complainant to another office; (4) remove
all negative comments concerning complainant's protected activity from
complainant's personnel file and from any other employee file; (5) expunge
complainant's Performance Evaluation and replace it with a higher rating;
(6) provide training in the obligations and duties imposed by Title
VII to the agency officials involved in complainant's complaint; (7)
conduct a supplementary investigation regarding whether complainant is
entitled to compensatory damages; (8) award reasonable attorney's fees,
if appropriate; and (9) post this notice.
The facility 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