Gloria Socorro-Klein, Complainant,v.Department of Labor Agency.

Equal Employment Opportunity CommissionDec 10, 2003
01A24975 (E.E.O.C. Dec. 10, 2003)

01A24975

12-10-2003

Gloria Socorro-Klein, Complainant, v. Department of Labor Agency.


Gloria Socorro-Klein v. Department of Labor

01A24975

December 10, 2003

.

Gloria Socorro-Klein,

Complainant,

v.

Department of Labor

Agency.

Appeal No. 01A24975

Agency No. 9-11-062

Hearing No. 100-A07137X

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's

appeal from the agency's final order in the above-entitled matter,

implementing the Administrative Judge's (AJ) finding that complainant

showed that her prior EEO activity (regarding a prior non-selection)

was a factor in her second non-selection claim, but that even absent

discrimination, complainant would not have been selected for the position

in claim two.<1> After a review of the record in its entirety, including

consideration of all statements submitted on appeal, it is the decision

of the Equal Employment Opportunity Commission to affirm the final

agency order because the Administrative Judge's ultimate finding, that

reprisal discrimination was proven by a preponderance of the evidence,

is supported by the record. Further, the Commission finds that the AJ's

findings of no discrimination on complainant's color, race, and national

origin claims are supported by substantial evidence in the record and that

the AJ's decision properly summarized the relevant facts and referenced

the appropriate regulations, policies, and laws. We discern no basis to

disturb the AJ's decision. Therefore, we affirm the agency's final order.

ORDER

If it has not already done so, the agency is ORDERED to take following

remedial actions:

The agency shall award complainant reasonable attorney's fees and costs

in the amount of $6,882.38.

The agency shall conduct eight (8) hours of training for the Selecting

Official herein, addressing her responsibility under the equal employment

opportunity law. The training shall place special emphasis on preventing

reprisal.

The agency shall consider appropriate disciplinary action against the

Selecting Official in connection with the reprisal action. 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.

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 evidence that correction action

mas been implemented.

POSTING ORDER (G0900)

The agency is ordered to post at its Office of Small Business Programs

in Washington, DC, 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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

December 10, 2003

__________________

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, as amended,

42 U.S.C. � 2000e et seq. has occurred at the Department of Labor,

Office of Small Business Programs in Washington, DC.

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 PHYSICAL or MENTAL DISABILITY with respect

to hiring, firing, promotion, compensation, or other terms, conditions

or privileges of employment.

The Department of Labor, Office of Small Business Programs 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 Labor, Office of Small Business Programs was found

to have retaliated against complainant when she was discouraged from

filing EEO complaints during a job interview. As a result of this

unlawful action, the agency was ordered to: (1) post this notice, and

(2) award attorneys fees and costs.

The Department of Labor, Office of Small Business Programs 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

1Both non-selections were before the AJ.