0120151282
01-09-2018
Nathan S.,1 Complainant, v. Jeff B. Sessions, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Nathan S.,1
Complainant,
v.
Jeff B. Sessions,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120151282
Hearing No. 430-2013-00356X
Agency No. BOP-2013-0042
DECISION
Complainant timey filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's final order concerning his equal employment opportunity (EEO) complaint alleging 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. For the following reasons, the Commission MODIFIES the Agency's final order.
ISSUES PRESENTED
The issues presented in this appeal are: (1) whether the EEOC Administrative Judge (AJ) properly issued a decision without a hearing; (2) whether the AJ correctly found that the Agency was not vicariously liable for the alleged harassment against Complainant; and (3) whether the AJ properly found that the Agency did not subject Complainant to disparate treatment based on race, as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Senior Officer Specialist, GS-8, at the Agency's Low Security Correctional Institution (LSCI) in Butner, North Carolina. Report of Investigation (ROI), at 57.
In August 2012, Complainant and another African-American (Officer 1) were working at the warehouse, when a Caucasian Officer (Officer 2) reportedly said as they were walking off, "See you, boys." ROI, at 58-59. Officer 1 corroborated Complainant's report that Officer 2 said, "See you, boys" as they were walking off that day. Id. at 119-20. Both Complainant and Officer 1 felt that that Officer 2's comment, calling them "boy" was derogatory and directed at their race. Id. at 120. Also, according to Complainant, on September 27, 2012, when he was about to leave for the day, Officer 2 commented to him, "See you tomorrow, boy." Id. at 21. Complainant felt that Officer 2's comment again calling him "boy" was highly inappropriate and derogatory. Complainant further averred that the Captain (Caucasian), who served as his first and second-level supervisor, also made a similar comment to him that he perceived to be racial in nature. Id. at 70. Complainant felt that the above racial comments from the Captain and Officer 2 were a clear sign that he was improperly denied training, which would have given him the opportunity for promotion to either the Security Officer or Assistant Security Officer position.
When the Former Security Officer (Hispanic) retired in 2012, Complainant served as an Alternate Security Officer until a replacement could be formally selected. Id. at 72, 100. Officer 2 and another Caucasian Officer (Officer 3) also served as Alternate Security Officers during the same time period as Complainant. Officers 2 and 3 were given the opportunity by management to attend the "Foley Belsaw" training and an Armory training course class in years previously. Id. at 66.
The Former Security Officer averred that he attempted to get the above trainings for Complainant on several occasions, which management repeatedly denied. Id. at 136-139. The Former Security Officer believed that it was the Captain's decision to deny Complainant the training. Id. The Former Security Officer also averred that he was frustrated by management's actions in denying Complainant training. Id. Complainant was again denied the opportunity to attend the trainings in October 2012.
The Associate Warden explained that Complainant was not placed on the training roster because Complainant was listed to serve as an alternate, not a primary, Security Officer and/or Lock Shop Specialist. Id. at 90-92. The Associate Warden further explained that Complainant mostly likely was denied the training for monetary reasons. Id. The Captain also affirmed that Complainant was denied the training because the Agency did not "have any money to pay for non-mandatory training." Id. at 102. The Former Security Officer explained, however, that such trainings have not been denied for monetary reasons previously for other Alternate Security Officers. Id. at 136.
Officer 2 stated that the Foley Beslaw course is a correspondence course for Locksmiths. Officer 2 elaborated:
And what the Foley Belsaw course actually does for that individual is that it helps them qualify for the position if an assistant's job ever comes open across the country for them to apply for the position. It's how you get yourself to be able to be qualified for a Locksmith or an Assistant Locksmith's job.
Id. at 111-12.
After Complainant was denied the trainings, Officer 2 and Officer 3 were non-competitively promoted to permanent positions of Security Officer and Assistant Security Officer, respectively. Id. at 102, 136-38. Officer 2 was promoted to the GS-10 grade-level and Officer 3 was promoted to the GS-9 grade-level. Id. at 106, 127.
Their positions required them to serve as Assistant Locksmith and permanent Security Locksmith. Id. at 126. Complainant's career goal was to be promoted to a similar position in security, serving as a permanent Locksmith at the GS-9 grade level. Complainant believed that management denied him the opportunity to attend the Foley Belsaw training as a means to promote Officer 2 and Officer 3 over him.
On October 24, 2012, Complainant contacted an EEO Counselor and filed a formal EEO complaint on January 24, 2013, alleging that the Agency discriminated against him based on race (African-American) when:
1. In August 2012, a Caucasian employee made the statement, "See you, boys," and on September 27, 2012, the same employee made the statement "Guess I'll see you tomorrow, boy."
2. In October 2012, the Complainant was denied training.
Following the investigation, Complainant was provided a copy of the investigative file and requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). While this matter was pending before the AJ, the Agency moved for summary judgment on January 16, 2014. Over Complainant's objection, the AJ granted the Agency's motion and issued a decision without a hearing in the Agency's favor, finding no discrimination.
Specifically, the AJ found that, while Complainant's objection to being called "boy" was certainly valid, there was no evidence that the Agency was liable for the derogatory reference towards Complainant. In so finding, the AJ noted that Complainant did not report Officer 2's use of the word "boy" to management at the time. The AJ further noted that management did not become aware of Officer 2's comments until mediation. The AJ, regarding claim 2, found that the Associate Warden articulated legitimate, nondiscriminatory reasons for denying Complainant training, as noted above; specifically, that Complainant was not placed on the training roster because he was listed to serve as an alternate and not a primary Security Officer and/or Lock Shop Specialist, and that the Agency did not have training funding for non-mandatory staff. The AJ further found that Complainant did not establish that the Agency's reasons were pretext for discrimination based on his race.
On January 26, 2015, the Agency issued its final order, requesting that the Commission remand the instant case for a hearing. Therein, the Agency "urges the Office of Federal Operations to remand this matter back for a hearing so that the record may be better developed." Final Order, at 6. The Agency specifically noted:
Contrary to the AJ's assessment that no evidence supported [C]omplainant's contention that he was denied training because of his race, several witnesses subscribed to [C]omplainant's view that FCC Butner's management foreclosed minorities from career advancement.
Id. at 2.
The Agency noted that the Former Security Officer strongly supported Complainant's claim that his denial of training was motivated by racial discrimination. The Agency further observed that the AJ's decision did not consider the Former Security Officer's assertion that racial discrimination influenced management's repeated denial of training for Complainant and that racism was the reason for the promotions of Officer 2 and Officer 3. The Agency additionally noted that the Former Security Officer had requested that Complainant receive the relevant training for the past five years, but it was denied on multiple occasions, while Officer 2 and Officer 3 had their requests for the training approved.
The Agency further referenced the Former Security Officer's affidavit wherein he asserted that, as a Hispanic employee, he faced similar discrimination, which prompted him to file his own EEO complaint. The Former Security Officer also had averred that, on multiple occasions, he witnessed that management would routinely deny training to African-Americans, while approving training for Caucasian officers. The Former Security Officer further had stated that management did not use merit as a selection criterion and that open positions were not advertised, and that "they pick who they want." Id. at 4 (citing ROI at 139). The Agency continued to reference the Former Security Officer:
Again like I said, you look at all the Lock Shops, there's not one minority at any of the Lock Shops, and this has been going on for years. I was the only one that broke through which I had to fight for. But ever since my retirement it hasn't happened again and everybody that's tried . . . I tried getting [Complainant] the position . . . he is a minority, and I was hoping that at least they would give him the assistant [position] when I left. When I left I told the Captain, "If there's anything you can do for him, even the assistant position, [Complainant] deserves it."
Id. at 6 (citing ROI, at 139).
The Agency further observed that the Associate Warden alleged that Complainant was denied the training because he was only an Alternate Security Officer and the Agency did not have funding for the training. The Agency noted, however, that both Officer 2 and Officer 3 received the training while serving as Alternates during the same period that Complainant's requests for training were denied. Final Order at 5. The Agency lastly noted that Officer 2's reference to African-American employees as "boy" is further evidence that Complainant was denied the training based on his race. The Agency believes that the AJ's decision to "summarily deny complainant's complaint is not well founded," and requests that we remand this matter for a hearing so the record may be further developed. Id. at 6.
CONTENTIONS ON APPEAL
On appeal, Complainant cites to the Agency's final action, arguing that the AJ erred in granting summary judgment. The Agency has not filed a brief on appeal.
STANDARD OF REVIEW
In rendering this appellate decision, we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, � VI.B. (Aug. 5, 2015) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chap. 9, � VI.A. (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
Summary Judgment
We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case.
If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
After a careful review of the record, we find that summary judgment was appropriate because no genuine dispute of material fact exists. With respect to claim 1, we find that the AJ properly found that the Agency was not vicariously liable for Officer 2's alleged harassment, because there is no dispute that Complainant did not report the alleged harassment to management.
However, we find that summary judgement should have been granted in favor of Complainant rather than the Agency, as the undisputed evidence of record reflects that Complainant was subjected to disparate treatment based on his race when he was denied training. Therefore, as discussed in detail below, we find that the AJ erred in finding in favor of the Agency rather than Complainant with respect to Claim 2.
Hostile Work Environment Harassment (Claim 1)
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is "sufficiently severe or pervasive to alter the conditions of [a complainant's] employment and create a hostile or abusive working environment." The Court explained that an "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive" and the complainant subjectively perceives it as such. Harris, 510 U.S. at 21-22. Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all the circumstances, including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id. at 23.
To establish a claim of harassment, Complainant must show that: (1) he is a member of a statutorily protected class; (2) he was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the protected class; (4) the harassment had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. � 1604.11. The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems. Inc., EEOC Notice No. 915.002 (Mar. 8, 1994) (Enforcement Guidance on Harris). The evaluation "requires careful consideration of the social context in which particular behavior occurs and is experienced by its target." Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998).
With respect to element (5), an agency is subject to vicarious liability for harassment when it is created by a supervisor with immediate (or successively higher) authority over the employee. See Burlington Industries. Inc. v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998). Where the harassment does not result in a tangible employment action, an agency can raise an affirmative defense, which is subject to proof by a preponderance of the evidence, by demonstrating: (1) that it exercised reasonable care to prevent and correct promptly any harassing behavior; and (2) that the complainant unreasonably failed to take advantage of any preventive or corrective opportunities provided by the agency or to avoid harm otherwise. See Burlington Industries, supra; Faragher, supra; Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999) (Enforcement Guidance on Vicarious Employer Liability). No affirmative defense is available when a supervisor's harassment results in a tangible employment action. Burlington Industries, at 762-63; Faragher, at 808.
In the case of co-worker harassment, an agency is responsible for acts of harassment in the workplace where the agency (or its agents) knew or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action. See Enforcement Guidance on Vicarious Employer Liability. What is appropriate remedial action will necessarily depend on the particular facts of the case, such as the severity and persistence of the harassment and the effectiveness of any initial remedial steps. See Taylor v. Dep't of Air Force, EEOC Request No. 05920194 (July 8, 1992).
In the instant case, Complainant alleges that Officer 2 referred to him as "boy" and other African-American employees on at least two occasions. Assuming, without finding, that the comments at issue were in fact severe or pervasive, as well as directed at Complainant because of his race, we find that the Agency cannot be held vicariously liable for Officer 2's comments because there is no dispute that Complainant did not report the comments to management. ROI, at 70.2
Disparate Treatment (Claim 2)
To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519(1993).
To establish a prima facie case of discrimination, Complainant must demonstrate that: (1) he is a member of a protected class, (2) he was subjected to adverse treatment, and (3) he was treated differently than otherwise similarly-situated employees outside of his protected classes. Walker v. U.S. Postal Serv., EEOC Appeal No. 01A14419 (Mar. 13, 2003); Ornelas v. Dep't of Justice, EEOC Appeal No. 01995301 (Sep. 26, 2002). Here, we find that Complainant established a prima face case of race discrimination with respect to claim 2. Two similarly situated Caucasian Officers received the training at issue, while Complainant did not, although the Former Security Officer made numerous requests on his behalf. Additionally, the two Caucasian Officers who received the training were then subsequently noncompetitively promoted.
The burden now shifts to the Agency to articulate legitimate, nondiscriminatory reasons for denying Complainant the training at issue. In doing so, the Associate Warden explained that Complainant was not placed on the training roster because he was listed to serve as an alternate and not a primary Security Officer and/or Lock Shop Specialist. The Associate Warden further explained that the Agency did not have the funds to send Complainant to the training. The Captain also similarly contended that the Agency did not have the money for the training. This explanation is sufficient to meet the Agency's burden.
To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves, 530 U.S. at 143; Hicks, 509 U.S. at 519. We find that Complainant has clearly done so in the present case, and that the AJ erred in finding otherwise. We find that the AJ did not consider the evidence Complainant offered to establish that the Agency's articulated reason was unworthy of belief. We note that the Supreme Court has held that the fact-finder may find pretext where she determines that the Agency's articulated reason is unworthy of belief. Reeves, 530 U.S. at 133. We find that Complainant has established that the Agency's nondiscriminatory reasons are unworthy of belief.
Specifically, as the Agency explained itself in its final order, both Officer 2 and Officer 3 received the training while serving as alternates during the same period that Complainant (also an alternate Security Officer) had his requests for training denied. We note that the Agency had the money for the Foley Beslaw training (among other trainings) for Officer 2 and Officer 3, but incredibly, did not have it for Complainant. We find that the AJ erred in not citing to the Former Security Officer's affidavit, wherein he stated his belief that the Agency was motivated by discriminatory racial animus in denying Complainant the training and subsequently not promoting him. As the Agency explains in its final order, this Former Security Officer attested that he witnessed management routinely deny training to African-Americans, while approving training for Caucasian officers. The Former Security Officer further stated that management did not use merit as a selection criterion, that open positions were not advertised, and that "they pick who they want." The Agency further explained that several witnesses subscribed to Complainant's view that management intentionally foreclosed minorities from career advancement. As Officer 2 stated, "[W]hat the Foley Belsaw course actually does for that individual is that it helps them qualify . . . if an assistant's job ever comes open . . . . [the training is] how you get yourself to be able to be qualified for a Locksmith or an Assistant Locksmith's job." ROI, at 111-12. There is no dispute that after Officer 2 and Officer 3 took the Foley Beslaw and Amory trainings, they were non-competitively promoted to Security Officer positions serving as Locksmiths. Officer 2 was promoted to the GS-10 grade-level and Officer 3 was promoted to the GS-9 grade-level. The record clearly reflects that the Agency intentionally denied Complainant the trainings at issue to promote Officer 2 and Officer 3 over him.
The Agency found that the AJ's decision was not well founded. We agree, and find that the Agency's proffered reasons for its actions are unsupported by the record and unworthy of belief. As such, we find that Complainant has established that he was subjected to disparate treatment based on his race as alleged.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we MODIFY the Agency's final order and direct the Agency to comply with the ORDER below.
ORDER
The Agency shall take the following actions within (120) calendar days after this decision is issued, unless otherwise specified:
1. Provide Complainant with the Foley Belsaw training and the Armory training course identified above, as well as any other trainings provided to Officer 2 and Officer 3 during the relevant time. The Agency shall thereafter non-competitively promote Complainant to the position of Security Officer, GS-10, or to a position substantially equivalent to the positions appointed to Officer 2 and Officer 3. The Agency shall also provide Complainant with any other benefits and/or privileges that accompany such trainings.
2. The Agency shall determine the appropriate amount of back pay, with interest and other benefits, due to Complainant pursuant to 29 C.F.R. 1614.501, no later than sixty calendar days after the decision becomes final. The back pay period shall begin on the earliest date that either Officer 2 or Officer 3 was promoted to the positions in question. Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision."
3. Within fifteen (15) calendar days of the date this decision becomes final, the Agency shall give Complainant a notice of his right to submit objective evidence (pursuant to the guidance given in Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (January 5, 1993)) in support of his claim for compensatory damages within forty-five (45) calendar days of the date Complainant receives the Agency's notice. The Agency shall complete the investigation on the claim for compensatory damages within forty-five (45) calendar days of the date the Agency receives Complainant's claim for compensatory damages.
4. Provide a minimum of eight hours of in-person or interactive training to the responsible management officials identified above (the Associate Warden and the Captain) to ensure that they are aware of their obligations, responsibilities, and rights under EEO law, including the right of employees to work in an environment free from racial discrimination.
5. Consider taking disciplinary action against the responsible management officials identified as the Associate Warden and the Captain. 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).
6. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision."
POSTING ORDER (G0617)
The Agency is ordered to post at its Low Security Correctional Institution (LSCI) Butner, North Carolina facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 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 as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g).
ATTORNEY'S FEES (H1016)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), 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 the date this decision was issued. 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 (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
01/09/18
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 We note that Complainant alleges that the Captain, who served as his first and second-level supervisor, also made comments to him that he perceived to be racially motivated. ROI, at 70. Complainant, however, has not described the nature of the Captain's alleged comments to him in the record.
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0120151282