0520080325
08-04-2008
George De Los Santos, Complainant, v. Stephen L. Johnson, Administrator, Environmental Protection Agency, Agency.
George De Los Santos,
Complainant,
v.
Stephen L. Johnson,
Administrator,
Environmental Protection Agency,
Agency.
Request No. 0520080325
Appeal No. 0120061139
Agency No. 20040065R6
DENIAL
The agency timely requested reconsideration of the decision in George De
Los Santos v. Environmental Protection Agency, EEOC Appeal No. 0120061139
(January 11, 2008). EEOC Regulations provide that the Commission may,
in its discretion, grant a request to reconsider any previous Commission
decision where the requesting party demonstrates 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. See 29 C.F.R. �
1614.405(b).
In his underlying complaint, complainant alleged that the agency subjected
him to unlawful discrimination, in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq., on the basis of
his national origin (Hispanic) when: (1) between December 2001 and August
2004 he was subjected to a hostile work environment; and (2) on April
21, 2004, management issued him a Memorandum of Warning. In its final
decision (FAD), the agency found no discrimination. Specifically, the FAD
found that complainant was not subjected to a hostile work environment
because the incidents alleged were not sufficiently severe or pervasive
to rise to the level of actionable harassment. The FAD also found that
complainant failed to show that the agency's articulated legitimate,
nondiscriminatory reasons for issuing him a Memorandum of Warning
were pretextual. On appeal, the Commission reversed the FAD. In our
decision, we found that, taken as a whole, the incidents alleged were
sufficiently severe and pervasive to support a finding of hostile work
environment harassment. We further found that complainant demonstrated,
by a preponderance of the evidence, that the agency's articulated reasons
for the issuance of the Memorandum of Warning were a pretext for unlawful
national origin discrimination.
In its request for reconsideration, the agency restates many of the
arguments made in its brief in opposition to complainant's appeal.
We find, however, that these arguments were fully considered on appeal
and after reconsidering the previous decision and the entire record,
the Commission finds that the request fails to meet the criteria of 29
C.F.R. � 1614.405(b), and it is the decision of the Commission to deny
the request. The decision in EEOC Appeal No. 0120061139 remains the
Commission's final decision. There is no further right of administrative
appeal on the decision of the Commission on this request. The agency
shall comply with the Order as set forth below.
ORDER
1. The agency shall immediately cease and desist from all conduct
directed at complainant and other members of his protected class,
and ensure that complainant is no longer subjected to a hostile work
environment because of his national origin and/or protected activity. Such
action shall include assuring that S1 in not placed in a supervisory
role over complainant. Further, the agency shall ensure that others at
the facility are protected from a hostile work environment.
2. Within sixty (60) calendar days of the date that this decision
becomes final, the agency shall provide management officials at its
El Paso and Dallas District Offices, Texas, with at least forty (40)
hours of EEO training regarding their obligations and responsibilities
under the federal employment anti-discrimination laws, paying particular
attention to harassment.
3. Within sixty (60) calendar days of the date that this decision
becomes final, the agency shall provide all employees at its El Paso
and Dallas District Offices, Texas, with at least forty (40) hours of
EEO sensitivity training, designed to eliminate acts of harassment in
the workplace.
4. The agency shall consider taking appropriate disciplinary action
against the responsible management officials. The Commission does not
consider training to be disciplinary action. The agency shall report
its decision to the compliance officer. If the agency decides to take
disciplinary action, it shall identify the action taken. If the agency
decides not to take disciplinary action, it shall set forth the reason(s)
for its decision not to impose discipline. If any of the responsible
management officials have left the agency's employ, the agency shall
furnish documentation of their departure date(s).
5. The agency will conduct a supplemental investigation on the
issue of complainant's entitlement to compensatory damages and will
afford him an opportunity to establish a causal relationship between the
violations found in this case with his pecuniary or non-pecuniary losses,
if any. Complainant will cooperate in the agency's efforts to compute the
amount of compensatory damages, and will provide all relevant information
requested by the agency. The agency will issue a final decision on the
issue of compensatory damages. 29 C.F.R. � 1614.110. The supplemental
investigation and issuance of the final decision will be completed with
sixty (60) calendar days of the date of this decision. A copy of the
final decision must be submitted to the Compliance Officer, as referenced
below.
6. The agency shall post the attached notice, as more fully set
forth in the "Posting Order" below.
7. The agency shall pay complainant's reasonable attorney's fees
and costs in accordance with the Attorney's Fees order herein.
8. 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 El Paso, TX 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 (K0408)
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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0408)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
RIGHT TO REQUEST COUNSEL (Z0408)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of the
Court. Filing a request for an attorney does not extend your time in
which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 4, 2008
__________________
Date
2
0520080325
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0520080325