07a10012monroigREcirc
04-25-2002
Emma Monroig, Complainant, v. Mary Frances Berry, Chairperson, U.S. Commission on Civil Rights, Agency.
Emma Monroig v. U.S. Commission on Civil Rights
07A10012
4/25/02
.
Emma Monroig,
Complainant,
v.
Mary Frances Berry,
Chairperson,
U.S. Commission on Civil Rights,
Agency.
Appeal No. 07A10012
Hearing Nos. 100-96-7943x, 100-97-7669x
DECISION
Concurrent with the issuance of its October 27, 2000 final order, the
agency filed a timely appeal which the Commission accepts pursuant to
29 C.F.R. � 1614.405.
BACKGROUND
Complainant, formerly the Solicitor and currently an Attorney Advisor
employed at the agency's Washington, D.C location, filed two formal
EEO complaints with the agency on November 13, 1995, and May 2, 1996,
alleging that she was subjected to unlawful discrimination in violation
of Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. � 2000e et seq., and the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. Specifically,
complainant alleged that she was discriminated against on the bases
of race (Hispanic), national origin (Puerto Rican), age (DOB: 1/12/44)
and in reprisal (opposition and prior participation) when:
(1) from December 1994 through May 2, 1995, she was assigned less
complex work as Solicitor;
she was detailed to less complex work and unestablished duties in the
Public Affairs Unit (PAU) on May 3, 1995, continuing through May 3, 1996;
irregularities occurred surrounding her 1994-1995 performance evaluation
including: (a) on October 30, 1995, she received a performance rating
of �fully successful� although she had never received a new performance
plan; (b) the agency failed to give complainant a mid-year review or
the opportunity to sign or comment on the performance rating; and (c)
the Deputy General Counsel signed her performance rating despite her
not having supervised complainant since May 3, 1995;
on February 5, 1996, she received a performance plan for the Public
Affairs Office position, with unestablished duties and without a position
description; and
on May 4, 1996, she was reassigned to a non-supervisory position as an
Attorney Advisor in the Office of General Counsel.
At the conclusion of the investigation, complainant was provided a copy
of the investigative report and requested a hearing before an AJ.
Complainant worked as the agency's Solicitor from 1990 until the acts
alleged herein occurred. As Solicitor, complainant acted as the agency's
senior legal advisor for the Ethics in Government Act, the Sunshine
Act, the Administrative Procedures Act, the Freedom of Information
Act, as well as other administrative law matters. She represented the
agency in matters before the Merit Systems Protection Board, the Equal
Employment Opportunity Commission, and the Federal Labor Relations Board.
Complainant cited her supervisors, the Staff Director and the Deputy
General Counsel, as those responsible for the discrimination.
The record reveals that the Staff Director, who did not work for the
agency at the time of the hearing, was not present at the hearing.
The Staff Director did however, provide an affidavit during the
investigations of the complaints. We further note that both the agency
and complainant were represented by counsel during the hearing.
Following a hearing, the AJ found that complainant failed to establish
that any of the actions alleged constituted discrimination due to
her race, sex, age or national origin. In that regard, the AJ found
complainant presented minimal comparative evidence which would establish
an inference of discrimination on any of these bases. Further, the AJ
found the statistical evidence presented by complainant that showed
the number of Hispanics decreased and the number of African Americans
increased after the current agency Chair took office was not persuasive.
However, the AJ did find that complainant established that her assignments
as Solicitor changed as a result of retaliation for prior EEO activity.
The AJ noted that the unrebutted testimony revealed that complainant had
her EEO responsibilities removed once the Staff Director became aware
that complainant filed an informal EEO complaint in December 1994.<1>
Indeed, the AJ found the agency failed to articulate a legitimate,
nondiscriminatory reason for removing complainant's EEO responsibilities
following her initiation of the EEO process.
Furthermore, the AJ found that the Staff Director's affidavit regarding
the reasons for removing complainant's other Solicitor responsibilities
lacked credibility. For instance, although the agency had previously
contracted with a private law firm, the bulk of the work was performed
following complainant's grievance and EEO complaint.<2> The AJ found
no evidentiary support for the notion that complainant, who worked as
Solicitor for the prior four years, could not perform the duties of
her position. As such, the AJ found the agency's explanation for the
change in complainant's duties to be pretext for discrimination.
The AJ also found that complainant was retaliated against in May 1995,
when she was transferred to the Public Affairs Unit (�PAU�) to work
on a brochure, �Getting Uncle Sam to Enforce Your Civil Rights.� The
AJ found that the triggering events for this detail was an April 18,
1995 memorandum written by complainant, as well as her grievance and
informal EEO complaint. The April 18, 1995 memo at issue involved
complainant's review of the agency's draft Administration Instruction
(AI) for EEO procedures. In the memo, complainant questioned the Staff
Director's operational authority over the EEO process, including her
authority to issue final decisions.<3>
In her decision, the AJ found that the April 18, 1995 memo constituted
protected EEO activity given that complainant was opposing what she
believed to be a threat to the integrity of the EEO process. The AJ
found the Staff Director's reason for detailing complainant to the PAU,
and for twice renewing the detail, lacked credibility and was a pretext
for retaliation. Specifically, testimony from the Director of the PAU
revealed he was surprised about the detail in light of the fact that
complainant was a GS-15 Solicitor, and she was assigned to a simple task
that required minimal sophistication. Further, he testified that he
neither requested the assignment of an attorney, nor did he think one
was necessary to update the pamphlet.
As for her allegations regarding irregularities surrounding her October
1995 performance rating and plan, the AJ found that although the agency
argued that a series of bureaucratic fumbles caused the problems,
no management official testified in this regard. In light of the
established causal connection between complainant's contact with an EEO
Counselor and her �fully successful� rating, the retaliatory animus of
the Staff Director who was responsible for ensuring proper evaluation
procedures, coupled with the agency's failure to articulate any reason
for the errors, the AJ found complainant established the allegations
constituted retaliation.
Complainant's last claim involved her May 1996 reassignment to a GS-15
Attorney Advisor position upon the completion of the PAU detail.
The position description states that complainant's duties included
responsibility for recommending investigations, participation in all
agency hearings, and serving as agency in-house counsel. The AJ found
the reasons for the reassignment were not credible. First, although the
Staff Director and Deputy General Counsel testified that there was not
sufficient work for a full time Solicitor, the individual who replaced
complainant testified that he worked 50-60 hours per week on Solicitor
duties. Further, despite the Deputy General Counsel's testimony that
the Solicitor duties were to be distributed among various attorneys,
the AJ found no testimony as to who performed the duties in question.
Complainant testified that during the first year in the new Attorney
Advisor position, she was asked to do research on Administrative
Instructions, as well as case summaries of recent federal decisions.
She testified she was not involved in any agency hearings or reports,
nor did she have any of the independence or contact with agency officials
as she did in the Solicitor position. In sum, the AJ found that the
agency's reason for reassigning complainant out of the Solicitor position
was a pretext for retaliation.
The AJ then proceeded to examine the complainant's relief. As equitable
relief, the AJ ordered that the agency reassign complainant to
the Solicitor position retroactive to the reassignment, remove all
records relating to the detail, give her a �commendable� rating on
her 1995 performance rating, and restore 120 hours of sick leave.
As compensatory damages, the AJ ordered that complainant be awarded
$60,000 in non-pecuniary damages for emotional distress, and $3,375 for
past pecuniary damages. Finally, the AJ awarded complainant $96,263.93
in attorney's fees, as well as $5,872.66 for litigation costs.
On October 27, 2000, the agency issued a final order denying to implement
the AJ's decision. Concurrently, the agency filed the instant appeal.
CONTENTIONS ON APPEAL
In its appeal, the agency makes several arguments. First, it argues that
the AJ erroneously denied the agency the right to attend the hearing
through a designated representative. Specifically, the agency argues
the AJ abused her discretion when she refused to permit the Deputy
General Counsel, who was also one of the alleged responsible management
officials and a fact witness in the case, to attend the hearing as an
agency representative. By denying the presence of the Acting General
Counsel at the hearing, the agency argued, the AJ effectively precluded
the agency from attending the hearing.<4>
The agency also argues the theory behind Rule 615 of the Federal Rules of
Evidence, �Exclusion of Witnesses� applies, and precludes the exclusion
of �an officer or employee or a party who is not a natural person
designated as its representative by its attorney.� The agency concedes
that the Federal Rules of Evidence are not applicable in administrative
proceedings, but rather, the Rule serves as persuasive evidence of the
right of certain witnesses to be present at proceedings.
The agency also contends that the AJ erroneously concluded that it
retaliated against complainant, since complainant did not engage
in protected activity. In that regard, the agency maintains that
complainant, as Solicitor, had an attorney-client relationship with the
agency when she filed her EEO complaints. When she filed her complaint,
complainant breached ethical obligations, including the duty of loyalty
and avoidance of conflicts of interest, and engaged in behavior that was
inappropriate and rendered complainant ineffective for the job. As such,
her behavior fell outside of the status' protections, and the agency acted
legitimately when it reassigned her EEO responsibilities. See Jones
v. Flagship International, 793 F.2d 714, 728 (5th Cir. 1986)(holding
that an EEO Manager's solicitation of others to join her in class action
was not protected activity and served as a legitimate, nondiscriminatory
reason for suspension and discharge).
The agency contends that the April 18, 1995 memo, which the AJ found
was the �triggering� event for her detail to the PAU, should not be
considered protected opposition activity because complainant, through the
memo, was not opposing any practice which she reasonably believed was
discriminatory. Instead, the agency argues, complainant only disputed
the Staff Director's authority to be the final decision making power
with respect to EEO complaints, and never stepped out of her role of
representing the agency.
The agency also contends the AJ erroneously awarded all of the
complainant's requested attorney's fees. Specifically, it argues that
the AJ should not have awarded all fees since some of complainant's
claims were withdrawn at the hearing, and the age, national origin,
and race claims were unsuccessful.
Complainant filed a response to the agency's appeal. Therein, complainant
argues that the AJ properly excluded the Acting General Counsel from the
hearing in light of the conflict of interest, as well as based on the
AJ's authority to control the attendance of individuals at the hearing.
Indeed, complainant argued, permitting the Acting General Counsel to
attend the hearing and act as agency representative would have tainted
the impartiality of the process given that she was one of the responding
officials. Complainant points out that the agency readily contracted
with a law firm for its legal representation and could have called on
other individuals to act as agency representative.
Complainant disputes the agency's argument that the April 18, 1995 memo
does not constitute protected activity. Indeed, complainant argues,
the practice that complainant opposed in the letter would have had a
chilling effect on those pursuing a claim.
Finally, complainant argues there was substantial evidence to support
the AJ's factual conclusions.<5>
ANALYSIS AND FINDINGS
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).
After a careful review of the record, we discern no basis to disturb
the AJ's finding of discrimination. The findings of fact are supported
by substantial evidence, and the AJ correctly applied the appropriate
regulations, policies, and laws. As for the agency's primary argument,
which was well briefed and considered by the AJ, we agree that to permit
the Deputy General Counsel, one of the responding management officials,
to attend the hearing and simultaneously act as agency representative
would create an inherent conflict of interest and tarnish other witnesses'
testimony. EEOC Management Directive 110 (EEOC MD-110)(November 9, 1999)
requires that there be distance between the fact-finding and defensive
functions of the agency in order to enhance the credibility of the EEO
office and the integrity of the EEO complaints process. EEOC MD-110 at
ch.1 s. III.
Even if the Deputy General Counsel had testified before all other
witnesses at the hearing, her presence would surely act to discourage
other employees from testifying freely. The agency was well represented
at the hearing, despite its arguments that the Deputy General Counsel was
the only management official �who had personal knowledge of the events
which led to [the] charges, and who also had the necessary legal knowledge
and experience to effectively assist agency counsel...� (Emphasis added)
Agency Brief on Appeal at 13.
Nor do we agree with the agency's next contention. Specifically, the
agency argued that complainant's duties were removed when she filed her
December 1994 EEO complaint because it interfered with her EEO duties.
This argument has little merit given the fact that this reason was not
articulated by the agency at the hearing. Furthermore, the agency does
not explain why other duties were removed and a private law firm was
retained, even though complainant had been successfully performing those
duties for the prior four years.
Furthermore, the agency argues that the filing of her complaint was
so disruptive that it rendered complainant ineffective for the job,
and thus was not protected activity. Most significantly, we note
that �the anti-discrimination statutes do not limit or condition in
any way the protection against retaliation for participating in the
charge process.� EEOC Compliance Manual, No. 915.002 (May 20, 1998).
Rather, the �reasonableness� standard, where the Commission balances
the rights of individuals versus the rights of the employer to retain a
stable work force applies to the opposition clause. See id. We do not
agree with the agency's argument which implies that in-house counsel lose
all rights to oppose discrimination or otherwise participate in the EEO
process simply because they are in-house counsel. See Kachmar v. Sungard
Data Systems, Inc., 109 F.3d 173, 179 (3rd Cir. 1997)(holding in-house
counsel's duty of confidentiality was not a bar to retaliation claim).
Nonetheless, complainant's situation can be distinguished from the
federal case law cited by the agency in that complainant neither disclosed
client confidences, nor did she solicit others to join in her lawsuit.
The act of filing a complaint without more, does not "so interfere with
[complainant's] performance of [her] job that it renders [her] ineffective
in the position for which [she] was employed." Verney v. Pennsylvania
Turnpike Commission, 903 F.Supp. 826, 832 (M.D. Pa. 1995), quoting Rosser
v. Laborer's Int'l Union, 616 F.2d 221, 223 (5th Cir.), cert. denied,
449 U.S. 886, 101 S.Ct. 241, 66 L.Ed.2d 112 (1980)(employee's discharge
following unsuccessful attempt to defeat immediate supervisor in election
not protected activity and served as legitimate nondiscriminatory reason
for discharge). We disagree with the agency's suggestion that the act
of filing a complaint by in-house counsel is not protected activity.
�Such a determination would remove in-house counsel from the protection
afforded by Title VII.� Verney v. Pennsylvania Turnpike Commission,
We disagree with the agency's argument that complainant's April 18, 1995
memo does not constitute protected activity, and therefore, even if it
was the triggering event for complainant's detail to the PAU, such detail
was not retaliatory. We first note that complainant already had engaged
in prior EEO activity, of which the agency was aware. Evidence of a
retaliatory motive has already been shown. Nonetheless, we agree that
the memo served to put the reader on notice that complainant opposed
what she believed would have a chilling effect on others participating
in the EEO process. See Torrez v. Social Security Administration, EEOC
Request No. 05950947 (March 10, 1998)(complaint alleging remarks made
by supervisor interfered with the EEO process and would have a chilling
effect on other's participation stated a claim).
The agency's remaining arguments address factual determinations by
the AJ. As we stated above, there is substantial evidence in the record
to support the AJ's conclusions.
RELIEF
Complainants who prevail on claims alleging discrimination in violation of
Title VII of the Civil Rights Act of 1964, as amended, are presumptively
entitled to an award of attorney's fees and costs. 29 C.F.R. �
1614.501(e)(1). Attorney's fees will be computed by determining the
"lodestar." The "lodestar" is the number of hours reasonably expended
multiplied by a reasonable hourly rate. Hensley v. Eckerhart, 461
U.S. 424, 434 (1983). By regulation, the Commission uses the same
basis for calculating the amount of attorney's fees. 29 C.F.R �
1614.501(e)(2)(ii)(B). A reasonable hourly rate is a rate based on
"prevailing market rates in the relevant community" for attorneys of
similar experience in similar cases. Cooley v. Department of Veterans
Affairs, EEOC Request No. 05960748 (July 30, 1998) (quoting Blum
v. Stenson, 465 U.S. 886 (1984)). In Save Our Cumberland Mountains,
Inc. v. Hodel, 857 F.2d 1516 (D.C. Cir. 1988), the court held that the
prevailing market rate should also be used to determine fee awards to
private, for-profit attorneys who represent certain clients at reduced
rates, which reflect "non-economic" goals. See also Cooley v. Department
of Veterans Administration, EEOC Request No. 05960748 (July 30, 1998);
Hatfield v. Department of the Navy, EEOC Appeal No. 01892909 (December
12, 1989).
The AJ in this instant case awarded the complainant $96, 263.93 for four
years of representation, and $5,872.66 for the costs of the litigation.
The agency argues that the fees are excessive, duplicative, and do not
take into account complainant's unsuccessful claims of race, national
origin and age discrimination. The agency also argues that the �hourly
rate� that should be applied in this situation is the rate at which they
were retained by their client, not the market rate. In that regard,
although complainant's attorneys argues that complainant was provided
�reduced rates for public-spirited or non-economic reasons,� she was
gainfully employed at all times at the GS-15 level. The agency contends
that should the Laffey matrix be used to calculate the market rate,
the Commission should use the chart from the U.S. Attorney's Office,
not the complainant's attorney's chart.
After a careful review of the parties' briefs in this regard, we agree
with the AJ's award. The record is clear that the litigation in the
instant complaint was hard fought, and did not involve the �garden
variety� discrimination claims cited by the agency. We find no evidence
of duplicative or excessive fees that have not already been corrected
by the AJ and the complainant's counsel. As such, we find no reasons
for the across the board reduction suggested by the agency.
As for the agency's argument that the fees should be reduced for
the unsuccessful race, national origin, and age claims, we disagree.
The instant case involved a common core of facts and was based upon
related legal theories. See Gray v. United States Postal Service,
EEOC Appeal No. 01965101 (July 28, 1998). As such, since most of the
attention was devoted to the litigation as a whole, the claims are not
easily dividable. See id.
As for the reasonable hourly rate charged, the evidence, including
affidavits from complainant's counsel, supports complainant's contention
that complainant was charged a reduced rate for non-economic reasons.
Further, the hourly rate cited by the complainant has been accepted in
several other cases, and we find it to be reasonable.
The agency did not raise the matter of compensatory damages on appeal.<6>
We find substantial evidence in the record to support the AJ's factual
conclusions in support of the award, as well as the other relief awarded.
Therefore, after a careful review of the record, including arguments and
evidence not specifically discussed in this decision, the Commission
reverses the agency's final order and directs the agency to take
corrective action in accordance with this decision and the Order below.
ORDER (C0900)
The agency is ordered to take the following remedial action:
Within thirty (30) days from the date this decision becomes
final, the complainant shall be placed back into her position of
Solicitor, retroactive to the date of her reassignment in May 1996.
The complainant's duties shall be those assigned to the Solicitor in the
1990 position description. The agency shall remove any records reflecting
the reassignment from complainant's Official Personnel File and all
other files maintained by Agency officials where such records may appear.
Within thirty (30) days from the date this decision becomes final,
the agency shall raise complainant's 1995 performance evaluation
to reflect the rating of �commendable.� The agency shall remove any
records reflecting the fully successful evaluation and detail to the
PAU, including the performance plan for unestablished duties, from
complainant's Official Personnel File and all other files maintained by
Agency officials where such records may appear.
Within thirty (30) days from the date this decision becomes final,
the agency shall restore three weeks (i.e., 120) hours of sick leave
to complainant.
The agency shall post a notice in accordance with the paragraph below.
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall take corrective, curative, and preventive action
to ensure that reprisal discrimination does not recur. This shall
include training to the relevant management and supervisory personnel
responsible for the discrimination on their responsibilities under Title
VII, particularly with respect to their duty not to retaliate against
individuals utilizing the EEO process.
Within thirty (30) days from the date this decision becomes final, the
agency shall pay complainant $96,263.93 in attorney's fees and $5,872.66
in costs.
Within thirty days from the date this decision becomes final, the agency
shall pay complainant $64,555 in non-pecuniary, past pecuniary and future
pecuniary damages.
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 verifying
that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Washington, D.C. 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.
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 (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
4/25/02
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
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, as amended,
42 U.S.C. � 2000e et seq., has occurred at this facility.
Federal law requires that there be no discrimination against any
employee or applicant for employment because of that 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 Office of the General Counsel, U.S. Commission on Civil Rights,
Washington, D.C., (hereinafter referred to as �facility�) supports
and will comply with such Federal law and will not take action against
individuals because they have exercised their rights under law.
The facility has been found to have discriminated on the basis of
reprisal when it retaliated against an individual by assigning her
less complex duties, detailing her to unestablished duties in another
unit, causing irregularities to occur in her performance evaluation and
plan, and reassigning her to a non-supervisory position. The facility
was ordered to return complainant to her prior position, and remove
all evidence of the reassignment from her Official Personnel File
and any other agency records. The agency was also ordered to raise
complainant's 1995 performance rating, and to remove all evidence of
the detail including the performance plan for unestablished duties
from complainant's Official Personnel File and other agency records.
The agency was also ordered to restore three weeks of sick leave,
pay compensatory damages and attorneys fees, provide training to the
responsible officials, and 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 16141In her 1994 informal EEO complaint, complainant
alleged that the then Acting General Counsel discriminated against her
when she made derogatory comments about Hispanics, and then provided
input into the Staff Directors' evaluation of complainant's performance.
The informal complaint eventually lapsed when complainant did not pursue
the matter to the formal stage.
2The Staff Director arranged for the contract between the agency and
the law firm, and complainant was not consulted in the matter, despite
her ethical and Privacy Act responsibilities. The costs of the work
amounted to $60,000.
3Also at this time, the Staff Director was the subject of numerous other
EEO complaints.
4Although the agency Chair, Mary Frances Berry, offered to serve as
the Representative, the AJ denied the request given that the Chair was
ultimate decision maker in the complaint.
5In addition, complainant argues that she presented sufficient evidence to
support her claims of race, national origin and age discrimination. The
record reveals that complainant's attorney received the agency's final
order on October 31, 2000. EEOC Regulation 29 C.F.R. � 1614.402(a)
provides that the complainant may appeal the agency's final action within
thirty days of receipt of the decision. However, in the present case,
the first correspondence received by the Commission from the complainant
was a December 4, 2000 request for extension of time in which to file
a Statement in Support of Appeal. Since the extension request was
filed outside the time in which to file an appeal, we will not consider
complainant's extension request as a Notice of Appeal. As such, we find
complainant did not timely file an appeal of those claims pertaining to
race, national origin and age discrimination.
6In its response to the agency's appeal, complainant states that the
Commission should uphold the AJ's decision and award of compensatory
damages and attorney's fees.