04a30006
09-10-2003
Mary E. Lisk-Nesbitt, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.
Mary E. Lisk-Nesbitt v. Department of the Army
04A30006
September 10, 2003
.
Mary E. Lisk-Nesbitt,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Petition No. 04A30006
Appeal No. 01A12060
Agency No. BHIEFO9304D0080
Hearing No. 320-99-8112X
DECISION ON A PETITION FOR CLARIFICATION
On October 16, 2002, the Equal Employment Opportunity Commission (EEOC
or Commission) docketed a petition for clarification from the agency
requesting clarification of our decision set forth in Mary E. Lisk-Nesbitt
v. Department of the Army, EEOC Appeal No. 01A12060 (July 9, 2002).
This petition for clarification is accepted by the Commission pursuant
to 29 C.F.R. � 1614.503(c).
Complainant initially filed a complaint in which she alleged that the
agency discriminated against her when she was sexually harassed and
reassigned. The agency dismissed the complainant as being premature, and
the Commission affirmed the agency's dismissal. See Lisk v. Department
of the Army, EEOC Appeal No. 01931705 (May 26, 1993). Thereafter,
complainant was reassigned and filed a second formal complainant alleging
reprisal for bringing the sexual harassment issue to an EEO Counselor.
After an investigation, complainant requested a hearing before an
Administrative Judge (AJ). The AJ returned the complaint to the
agency without holding a hearing with instructions for the agency to
further investigate the issues of sexual harassment and reassignment.
In a Final Agency Decision (FAD), the agency dismissed the complaint
for untimely EEO counselor contact. The agency further dismissed a
third formal complaint filed by complainant alleging sexual assault and
reassignment on the grounds that the claims were moot.
On appeal, the Commission remanded the complaint back to the agency for
continued processing on the grounds that the record lacked evidence upon
which the Commission could make a finding. See Lisk v. Department of
the Army, EEOC Appeal No. 01944491 (July 26, 1995). The agency filed
a request for reconsideration on August 25, 1995, which the Commission
denied. See Lisk v. Department of the Army, EEOC Request No. 05950896
(April 10, 1997). On its own motion, the Commission decided to reopen
the previous decision EEOC Appeal No. 01944491. The Commission defined
complainant's complaint as encompassing the issues of sexual harassment,
hostile work environment, sexual assault and retaliation and remanded the
complaint to the agency for an investigation. After the investigation
was complete, complainant requested a hearing. The AJ issued a bench
decision finding that complainant had been discriminated against and
awarded her $5,000.00 for her out-of-pocket expenses and $50,000.00
for her pain and suffering. The agency adopted the AJ's decision in
full, and the complainant appealed to the Commission. In its decision,
the Commission found that the AJ had erred in not allowing complainant
to raise the issue of retaliation and remanded the complaint to the AJ
for a hearing on that issue. See Lisk v. Department of the Army, EEOC
Appeal No. 01A12060 (July 9, 2002). The decision, in part, contained
a posting order requiring the agency to post a notice to employees for
60 days. The matter was assigned to a Compliance Officer and docketed
as Compliance No. 06A21326 on July 9, 2002.
The agency, in its petition, requests clarification concerning the
posting order. The agency states that the Commission's decision in
EEOC Appeal No. 01A12060 ordered the agency to post a notice for 60
days at the Fort Carson, Colorado facility. The agency argues that it
already posted a notice concerning its violation of Title VII pursuant
to the order of the Administrative Judge. The agency includes a copy
of the notice which was posted from March 6, 201 through May 5, 2001.
Since there has been no additional finding of discrimination since the
relevant decision of the Administrative Judge, the agency requests that
we clarify whether they have to re-post the notice.
Upon review, the Commission finds that the agency is in compliance with
the order set forth in EEOC Appeal No. 01A12060. The record establishes
that the agency prematurely posted the notice to employees issued by the
AJ from March 6, 2001 until May 5, 2001. We find that the AJ's notice
and the order set forth in the Commission's previous decision in EEOC
Appeal No. 01A12060 concern the same violation of Title VII.
CONCLUSION
Based on a review of the record, and for the foregoing reasons, the
Commission GRANTS the agency's Petition for Clarification of the Posting
Order in Lisk v. Department of the Army, EEOC Appeal No. 01A12060 (July
9, 2002). We find that the agency fully complied with the Commission's
posting order.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
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 (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
September 10, 2003
__________________
Date