01A20111
03-10-2004
Joan C. Anthony, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.
Joan C. Anthony v. Interior
01A20111
March 10, 2004
.
Joan C. Anthony,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01A20111
Agency No. OS-00-014
DECISION
The 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. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission affirms, in part, and reverses, in part,
the agency's final decision.
The issues presented are whether the agency properly determined that the
complainant was not subjected to a hostile environment or discrimination
based on her sex (female), age (DOB July 28, 1939), and/ or reprisal for
EEO activity (prior opposition to the agency's perceived non-compliance
with its Title VII responsibilities and the agency's EEO's diversity
plan).
BACKGROUND
The record reveals that during the relevant time, the complainant was
employed as a Program Manager and Attorney-Advisor, GS-905-14 at the
Department of Interior Board of Land Appeals (IBLA), Office of Hearings
and Appeals (OHA) in Arlington, Virginia. The complainant filed a formal
complaint alleging unlawful discrimination and reprisal. Specifically,
the complainant alleged that, from August 1998 to April 2000, she
was subjected to derogatory comments and a hostile environment that
resulted in her being denied case assignments, ostracized, and not given
consideration for promotional opportunities.
On February 22, 2000, the complainant sought EEO counseling. She filed
her formal complaint on May 8. The agency allowed her to amend her
complaint to include an allegation of retaliation.
At the conclusion of the investigation, the 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. The complainant
requested a FAD.
In its FAD and with regard to the reprisal claim, the agency says that
there is no evidence that she suffered any adverse employment actions. The
agency concluded that based on their review, the complainant failed
to show a pattern of severe or pervasive harassment. The FAD also
concluded that she had not presented a prima facie case of sex, age
or reprisal for protected EEO activity. The FAD did not address the
complainant's assertion that two management officials told her that if
she continued to talk about the EEO diversity plan, it could result in
adverse personnel actions against her. The FAD treated her reprisal claim
as an allegation of dissatisfaction with the processing of a previously
filed complaint. See 29 C.F.R. �1614.107(a)(8). The agency concluded
that no further review of the allegation was warranted. It is from this
FAD that the complainant now appeals.
In her brief on appeal, the complainant argues, inter alia, that
the agency's FAD is wrong as a matter of fact and law. Specifically,
she argues that the decision is factually in error, improperly relies
on the testimony of agency witnesses who lack credibility and that the
decision fails to address the testimony of the witnesses who testified in
complainant's favor. The agency acknowledges that the FAD incorrectly
identified the supervisors, but the agency contends that the record
supports its finding of no discrimination and no reprisal. The agency
requests that we affirm its FAD.
The supervisor (RMO1) attributes any animosity towards the complainant
to what he regarded as her lack of people skills. On September 1, 1999,
the complainant was assigned to RMO1, who was her supervisor for FY
2000.<1> Further, the agency contends (and the complainant concedes)
that some of the animosity toward the complainant began prior to the
time that she challenged the agency's diversity plan or questioned the
agency's Title VII compliance. Some of the hostility was attributable
to the complainant's testimony in a non-EEO matter as a Departmental
witness at the Federal Labor Relations Act administrative hearing
in 1997.<2> The complainant challenged the managerial behavior of
the former Chief Administrative Judge and provided information to the
Department of Interior's Office of Inspector General detailing management
practices (whistle-blowing). The complainant contends, however, that
the hostility toward her greatly increased after she challenged the EEO
plan in August 1998.
With regard to her opposition under Title VII, the record shows
that, in response to an invitation to comment on the agency's draft
Departmental Diversity Plan 1999, the complainant sent the Deputy
Assistant Secretary an analysis of the agency's draft Departmental
Diversity Plan. On October 14, 1998, she also provided a copy of her
analysis of IBLA's discriminatory practices to the Director of IBLA. The
complainant asserted her belief that the agency's past practices reflected
discrimination and cronyism in the IBLA which worked to the disadvantage
of women and African-Americans. In her comments, the complainant indicated
that the IBLA management denied advancement to women, while favoring
the non-competitive promotion of favored white males for the IBLA Docket
Clerk position. She pointed out that no woman had served as the docket
clerk and that at least three administrative judges sitting on the
Board in August 1998 had been promoted to their jobs after serving as
the docket attorney. The complainant also submitted two other e-mails
and correspondence that addressed the OHA's EEO Plan. Applying the facts
herein, the complainant engaged in protected activity in August 1998
through February, 1999 by raising concerns about what she perceived
to be discriminatory actions and non-compliance with the agency's EEO
mandate. The responsible officials do not dispute that they were aware
of her EEO activity in the form of challenging the diversity plan.
The record shows that in October 1998, the RMO2 created a new GS-15
position entitled �Docket Attorney� and the record confirms that the
agency non-competitively elevated a younger white male.<3>
This record also shows that, during a conversation with Chief Judge RMO2,
one of the judges asked the RMO2 about the selection of the next Docket
Attorney for the Interior Board of Land Appeals (IBLA) within OHA, the
RMO2 responded by naming a particular individual that the RMO2 thought
should get the job. The RMO2 told the inquiring judge that there was
one person that he would not want to get the job, and he acknowledged
to the judge that he was referring to the complainant. The RMO2 added
that he said that he did not think that the complainant would make a
good Docket Attorney. RMO2 was then the chief administrative judge of
IBLA. The person who was selected for the Docket Attorney position was
male and younger than the complainant. The complainant did not learn of
the conversation until March 10, 2000.
ANALYSIS
This is an appeal from a FAD issued without a hearing, pursuant to 29
C.F.R. � 1614.110(b). The agency's decision is subject to a de novo
review by the Commission. 29 C.F.R. � 1614.405(a).
Whistle-Blowing
The whistle-blowing at issue pertained to a non-EEO related matter- -
whether the IBLA administrative judges were supervisors, or qualified
for membership in a bargaining unit. The complainant stated that on
January 19, 1998 she reported the hostility directed at her by RMO2 to
the then Director. The former Director sent a memorandum to his superior,
the Assistant Secretary, advising him of the Department's duty to put an
immediate stop to the hostile treatment of the complainant. No action
was taken because the Chief Judge believed that the hostility was because
the complainant had aligned herself with the former director over the
issue of production quotas for judges and staff attorneys. It is well
settled that engaging in whistle-blowing is not protected EEO activity.
See Reavill v. Department of the Navy, EEOC Appeal No. 05950174 (July 19,
1996) (finding that participation in grievance process is protected only
if claims of discrimination were raised therein).
Sex and Age Discrimination - Non Selection
Section 717 of Title VII of the Civil Rights Act (amended in 1972)
provides that all federal employment actions shall be made free from
any discrimination based on race, color, religion, sex, or national
origin.<4> The ADEA prohibits age discrimination. The Commission
regulation at 29 CFR � 1614.101(a) provides that the agency has a
continuing duty to promote the full realization of equal employment
opportunity in its policies and practices. See Jesse Torrez v. Social
Security Administration, EEOC Request 05950947 (March 10, 1998).
In order to establish a prima facie case of sex and age discrimination,
the complainant must show that she was treated less favorably than
similarly situated younger men. When a complainant alleges that he or
she has been disparately treated by the employing agency as a result
of unlawful age discrimination, "liability depends on whether the
protected trait (under the ADEA, age) actually motivated the employer's
decision." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141
(2000) (citing Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993)).
With regard to her allegation regarding the promotional consideration
for the docket clerk position, the complainant has shown that she was
qualified, not granted consideration, or the opportunity to compete,
for the Docket Clerk position, and that a younger male was appointed.
The Commission finds that the complainant properly established a prima
facie case of sex and age discrimination.
Our analysis proceeds to the next step of the analysis, wherein the
agency must articulate a legitimate, non-discriminatory reason for its
selection decision. The agency asserts that the candidate advanced was the
better qualified. The record shows that the younger male was continuing
the docket attorney responsibilities he attained through an accretion of
duties. We find that the complainant has not presented evidence that more
likely than not, the accretion of duties was an act of discrimination
or retaliation against the complainant. The record does not show that
the complainant was so superior to the selectee to prove pretext.
Reprisal / Retaliation and Hostile Environment
Pursuant to Commission regulation at 29 C.F.R. � 1614.101(b), it is
unlawful for any person to be subjected to retaliation for opposing any
practice made unlawful by Title VII or the ADEA. Also, the Commission has
a policy of considering reprisal claims with a broad view of coverage.
See Carroll v. Department of the Army, EEOC Request No. 05970939 (April
4, 2000).
Further, the complainant may establish a prima facie case of reprisal
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) she engaged in a protected activity; (2) the
agency officials were aware of the protected activity; (3) subsequently,
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). In this case, starting in August 1998, the
complainant challenged the agency's alleged lack of compliance with the
Commission's EEO regulations and the EEO mandate.
The agency asserts that the record does not establish a prima facie
case of reprisal or show that EEO activity had taken place, or that she
suffered an adverse action.
We disagree. In terms of the EEO activity, it is undisputed that the
complainant engaged in opposition to EEO practices that she viewed as
unlawful. The record confirms in testimony that in 1999, the RMOs �made it
clear to her at a meeting attended by others that her continuing conduct
opposing the EEO practices could result in adverse personnel actions.� The
agency conceded that there was some hostility toward the complainant. On
February 25, 1999, after the complainant asserted in an e-mail message to
the Director of OHA that she believed that IBLA management discriminated
against women and non-Caucasian employees and rewarded cronyism, the
Chief Administrative Judge and the Deputy Chief Administrative Judge
threatened to take disciplinary action against her. The record shows
that she was subjected to derogatory remarks. Shortly after the hire of
a female judge, RMO2 told the newly-hired Administrative Judge that the
complainant was crazy, unstable, and had a bad attitude.<5> The record
contains testimony that a meeting was called at which the RMO told the
complainant that continuing her conduct could result in actions against
her and threatened her with a negative personnel action if she did not
stop alleging that IBLA management unlawfully discriminated against
women.<6>
The record provides other indicia of a hostile work environment. The
complainant was not provided with the inventory of cases to meet the
production quota or given the work assignments provided to others who
had not spoken out.
The record does not show that the agency gave due consideration to the
credible testimony of those who provided testimony in support of the
complainant. Those who provided testimony in support of the complainant
included other supervisory judges. These witnesses refuted the contention
of the responsible management officials that the complainant's lack of
people skills was the reason for the hostile environment. The record
reflects testimony from the judges that the agency was using the stated
lack of �people skills� as an �excuse�. The record shows that the agency's
other stated reasons lack credibility or were inconsistent. For example,
RMO2 said that he did not give the complainant cases because she had a
backlog, but the record does not show that the complainant had a backlog.
The record shows that the supervisors did threaten the complainant
with an adverse personnel action if she continued to challenge the
agency's alleged lack of EEO action. We find that, taken together,
the comments telling the complainant not to talk about the plan,
threatening to take disciplinary action, and ostracizing her constitute
violations of Title VII and the Commission's regulations banning reprisal.
42 U.S.C. 2000e-3(a); 42 U.S.C. 2000e-17 and 29 C.F.R. � 1614.101(b).
Moreover, the Commission regulation at 29 C.F.R. � 1614.102(a) requires
Federal agencies to promote equal employment opportunity by identifying
and eliminating discriminatory barriers. Similarly, the Commission
regulations at �1614.102(b)(5) and (b)(11) require that the agency
establish a system for periodically evaluating the effectiveness
of the agency's EEO efforts and to make the workplace free of any
discrimination that is reasonably likely to deter protected activity.
See EEOC Compliance Manual Section 8, "Retaliation," No. 915.003 (May 20,
1998), at 8-15; see also Carroll, supra.
We find that the complainant did suffer an adverse change in the terms
of her assignments and her work relationships. It was undisputed that
she received no IBLA cases from her supervisory judge in March and
April of 2000. She was shunned, told to stop making the statements,
isolated by management officials, reassigned to a manager who had
already expressed hostility to her, had derogatory remarks made against
her; and her defenders became the target of criticism. In addition,
the record shows that she did not have her papers copied and items
were taken down off her door. While she was having problems before for
reasons unrelated to EEO, the incidents at issue began within a short
period of time after she challenged the diversity plan and continued at a
steady pace into the year 2000. These actions, alone and in combination,
were adverse in nature, as numerous witnesses attested. We also note the
actions were sufficiently close in time to her speaking out regarding
the perceived lack of compliance to permit an inference of retaliatory
motive. Complainant established a sufficient causal link to the agency's
retaliatory actions that followed her raising her concerns in e-mails
and at meetings.<7> We find the threat to be adverse treatment that
is reasonably likely to deter complainant or others from engaging in
protected activity, as contemplated by the statute. See Carl W. Reed
v. Department of Transportation, EEOC Appeal 01A05086 (May 20, 2003).
The statements of several witnesses confirm that the named responsible
management officials often made derogatory remarks against the
complainant. Generally, petty slights and trivial annoyances are
not actionable. In this case, however, the actions were ongoing and
corroborated. The atmosphere was described as toxic. The agency took
no steps to take appropriate, effective, corrective action to end the
harassment against the complainant. We find that the behavior complained
of during the relevant period was sufficiently severe and pervasive to
render the work environment hostile after the complainant challenged
the diversity plan.
To the extent that the actions can be construed as disparate treatment
for which the agency articulated a legitimate reason, the record reflects
that the testimony of the RMO was inconsistent with regard to why she
did not receive assignments. The RMO said that she had a backlog and
he thought he was doing her a favor by allowing her to get the old
cases out. The record reflects that she was completely up to date
with her work and that she was awaiting assignments. The record shows
that he said that she had received the assignments. At other points,
the RMOs attempt to justify the treatment by saying the differences
are attributable to her �outspokenness� regarding her work and her
challenges to how OHA/ IBLA should be managed. Witnesses said that the
agency used her provocative views as �an excuse.� The witnesses testified
that while she expressed different views, she was never condescending or
disrespectful. We find that the complainant's allegations are supported
by the testimony of several credible witnesses. To the extent that this
is viewed as a disparate treatment case, we note that pretext is shown by
management's response to e-mail dated February 22, 1999 in her defense,
where a co-worker was told not to do this again. Also see Dawn McGuire
v. Department of the Interior, EEOC Appeal 01974949 (October 28, 1999)
(after filing EEO complaint, employee was shunned and the lack of �people
skills was a favorite reason that managers used to justify retaliation�).
For these reasons and based on the retaliation and hostile environment
claims, we will afford the complainant the opportunity to establish her
entitlement to compensatory damages.
Under 29 C.F.R. � 1614.101(b), it is unlawful to retaliate against an
employee for opposition to any discriminatory practice. The Commission
has held that the actions of a supervisor may be reprisal where s/he
intimidates an employee. See Binseel v. Department of the Army, EEOC
Request 05970584 (October 8, 1998). See Hazel E. Laurant v. Department of
the Navy, EEOC Appeal 01A04697 (February 20, 2003) (requiring agencies
to take all actions necessary to ensure that agency supervisors and
managers refrain from making comments that may discourage the use of
the EEO process.)
Taken in its totality, the evidence supports the reprisal claim. Our
careful review of the record has persuaded us that the agency, through
its managers and coworkers, has subjected the complainant over a
sustained period of time to a hostile and retaliatory work environment
that permeated, tainted and motivated the actions taken by the agency
officials towards her.
Therefore, after a careful review of the record, including the
complainant's contentions on appeal, the agency's response, and arguments
and evidence not specifically addressed in this decision, we affirm
the FAD, in part, and reverse the FAD, in part. We find that during
the period 1998 to 2000, the agency did not discriminate against the
complainant based on her sex and age, but the agency did retaliate
against the complainant and subject her to a hostile environment for
her challenging the agency's EEO policies and practices. We affirm the
FAD on the sex and age discrimination determinations, but we reverse
on all other claims, including the retaliation and hostile environment
for challenging the agency's perceived lack of compliance with regard
to its EEO responsibilities. The agency is to take remedial actions in
accordance with this decision set forth below.
ORDER (E0900)
The agency is ORDERED to take the following remedial actions:
No later than thirty (30) calendar days after the date this decision
becomes final, the agency shall offer her a reassignment that is
acceptable to the complainant to either another judge, reassignment out
of the Office of Hearings and Appeals to an office with the Department
in the DC area or to an acceptable GS-14 attorney position.
No later than sixty (60) calendar days after the date this decision
becomes final, the agency is directed to provide eight hours of
training for the RMOs who engaged in the retaliation. The agency shall
address these employees' responsibilities with respect to prohibiting
and refraining from retaliation in the workplace and with respect to
preserving the integrity of the EEO process. The RMOs shall receive a
minimum of eight (8) hours of EEO training with respect to Title VII and
retaliation to ensure that acts of retaliation are not taken against any
employee who opposes unlawful discrimination, and that persons reporting,
assisting or challenging acts perceived to be unlawful are treated in
a lawful manner in accordance with Title VII.
No later than sixty (60) calendar days after the date this decision
becomes final, the agency is to review the matter giving rise to this
complaint, and to determine whether disciplinary action against any
of the responsible individuals discussed herein is appropriate. The
agency shall record the basis for its decision to take or not to take
such actions, and report the same to the Commission in the same manner
that the implementation of the rest of the order is reported.
No later than thirty (30) calendar days after the date this decision
becomes final, the agency shall post the attached notice.
The agency shall pay attorney's fees, as reflected below.
The agency shall conduct a supplemental investigation on the issue of
the complainant's entitlement to compensatory damages and shall afford
the complainant an opportunity to establish a causal relationship between
the reprisal / retaliation and hostile environment and any pecuniary or
non-pecuniary losses. The Complainant shall cooperate in the agency's
efforts to compute the amount of compensatory damages, and shall provide
all relevant information requested by the agency. The agency shall
afford the complainant sixty (60) days to submit evidence in support
of her claim for compensatory damages. The agency shall issue a final
decision on the issue of compensatory damages 29 C.F.R. � 1614.110.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled �Implementation of the Commission's
Decision.� The report shall include supporting documentation of
the agency's calculation of back pay and other benefits due the
complainant, including evidence that the corrective action ordered has
been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Board of Land Appeals, Office
of Hearings and Appeals facility in Arlington, Virginia 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 the 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 order and 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 (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 M. Hadden, Director
Office of Federal Operations
March 10, 2004
__________________
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 this facility or
with regard to an employee who has been employed at this 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 Interior, at its Board of Land Appeals, Office of
Hearings and Appeals in Arlington, Virginia, supports and will comply
with such Federal law and will not take action against individuals
because they have exercised their rights under law or offered evidence
in support of such individuals.
The Department of Interior, at its Board of Land Appeals, Office of
Hearings and Appeals in Arlington, Virginia, was found to have violated
Title VII when it retaliated against an employee, when it denied her
assignments, ostracized her and subjected her to a hostile environment.
The facility has been ordered to remedy the employee. As a remedy for
the retaliation, the agency was ordered, among other things, to (1)
offer her reassignment; (2) award the complainant compensatory damages
and reasonable attorney's fees, if applicable; and (3) post this notice.
In addition, the Department of Interior, at its Board of Land Appeals,
Office of Hearings and Appeals in Arlington, Virginia, was ordered to
submit a compliance report to the Commission verifying the completion
of all ordered corrective action. The Department of Interior, at its
Board of Land Appeals, Office of Hearings and Appeals in Arlington,
Virginia, will ensure that officials responsible for personnel decisions
and terms and conditions of employment will abide by the requirements
of all Federal equal employment opportunity laws.
The Department of Interior, at its Board of Land Appeals, Office of
Hearings and Appeals in Arlington, Virginia, 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 16141 Each fiscal year, the attorneys were rotated and
assigned to a different IBLA administrative judge for the fiscal year. For
the fiscal year 2000, beginning October 1, 1999 and ending September
30, 2000, her first line supervisor was Responding Management Official
(RMO1), to whom she was assigned on September 1, 1999. Her second line
supervisor was the Chief Administrative Judge, ( RMO2); and he had been
her second line supervisor since she was hired to work at IBLA in November
1995 until October 31, 2000. Her third line supervisor was the Director
of the Office of Hearings and Appeals ( RMO3); and he was incorrectly
identified in the FAD and confused with RMO2. The record indicates
that on October 31, 2000, both RMO2 and RMO3 were removed from their
respective positions as Director, OHA and Chief Administrative Judge,
IBLA, following a management audit by the IG and the resulting directive
by the former Secretary.
2She testified in support of a position of the then director. The
record shows, and the complainant admits that a portion of her problems
with the agency began with her testimony in a non-EEO matter and her
association with a former director. The issue in that non-EEO matter
was whether the Interior Board of Land Appeals (IBLA) administrative
judges, as supervisors, qualified for membership in a bargaining unit -
- whether they were supervisors and whether the agreement should have
production quotas. When she spoke up at a meeting on September 30,
1997 and at an all-office meeting that he chaired, the RMO2 was hostile
and sarcastic. This was long before she challenged the EEO plan in 1998.
3 The complainant is not alleging race discrimination, but she questioned
the agency's practices that favored white males.
4 When first enacted in 1964, the Civil Rights Act did not contain
a federal sector provision. The federal EEO provision (Section 717)
was added to Title VII by a 1972 amendment. Congress transferred the
enforcement authority for Section 717 to the Equal Employment Opportunity
Commission from the former Civil Service Commission (Office of Personnel
Management) under Section 3 of the President's Reorganization Plan No. 1
of 1978, "Transfer of Equal Opportunity in Federal Employment Enforcement
Functions and Related Functions Vested in the Civil Service Commission
under Section 717" effective January 1, 1979.
5The record shows that she provided information to the agency's Office
of Inspector General detailing management practices that she believed
to be discriminatory and not in compliance with Title VII and agency
EEO obligations under EEOC regulations. Two of the mandatory remedies
imposed upon the division by the Secretary's order was the immediate
training of all employees in sexual harassment and diversity.
6The record shows that on February 18, 1999, an IBLA staff attorney
sent to all employees at the Interior Board of Land Appeals, an e-mail
entitled Respect, dated 2/18/99, protesting what he characterized
as the uncivilized and immature actions directed to the complainant.
He was chastised for sending the e-mail in support of the complainant.
7 Some of these actions began when she challenged management on a
non-EEO matter, but the record shows that the actions grew worse after
she submitted her comments challenging the agency's EEO diversity plan.