07A10048
12-23-2002
Robert Germain, Complainant, v. Christine Todd Whitman, Administrator, Environmental Protection Agency, Agency.
Robert Germain v. Environmental Protection Agency
07A10048
December 23, 2002
.
Robert Germain,
Complainant,
v.
Christine Todd Whitman,
Administrator,
Environmental Protection Agency,
Agency.
Appeal No. 07A10048
Agency No. 95-0029-R8R
Hearing No. 320-A0-8331x
DECISION
Following its January 3, 2001 final order, the agency filed a timely
appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405.
On appeal, the agency requests that the Commission affirm its rejection of
an EEOC Administrative Judge's (AJ) finding that the agency discriminated
against complainant on the basis of his disability. The agency also
requests that the Commission affirm its rejection of the AJ's order
to grant remedial relief. For the following reasons, the Commission
REVERSES the agency's final order.
BACKGROUND
Complainant, a Health and Safety Specialist employed at the agency's
Denver Regional office, filed a formal EEO complaint with the agency on
January 17, 1995, alleging that the agency had discriminated against him
on the bases of race (Caucasian), age (55 - 57 at the relevant time),
and disability (migraine headaches, duodenitis, gastritis, adrenal tumor,
irritable bowel syndrome, renal cysts, colon polyps, recurrent hemoccult
positive stools, hypertension, recurrent epididymitis, degenerative
joint disease of the cervical spine with past radiculitis, gout,
psoriasis, nephrolithiasis, zanthelasma, eczema, seborrheic dermatitis,
polycythemia, enlarged prostrate, nasal polyps, Wolff-Parkinson-White
syndrome, gastroesphageal reflux) when:
(1) the agency failed to provide him with performance standards and a
performance evaluation for FY1994;
(2) as late as the time of his retirement in November 1994, the
agency failed to provide him with reasonable accommodation for his
disability; and
(3) as a result of the agency's failure to provide a reasonable
accommodation, he was forced to apply for and accept disability
retirement in November 1994.<1>
The subsequent processing of this formal complaint involves many
complications which will not be described in this decision, but which
were fully explained in the EEOC Administrative Judge's November 20, 2000
decision. Here, it is sufficient to note that after a long delay, much of
which was due to the agency's failure to properly process complainant's
complaint, complainant requested a hearing before an EEOC Administrative
Judge (AJ) on July 7, 2000. On July 17, 2000, the AJ issued a Notice of
Hearing Request and Order Directing the Agency to Produce Complaint File.
This Notice provided that if the agency failed, without good cause, to
provide the ordered materials within 15 days from receipt of the Notice,
the AJ may impose sanctions, including, among other things, a default
decision for complainant. The agency received this notice on July 27,
2000, but did not respond. Therefore, on September 19, 2000, the AJ
issued an Order to Show Cause, which stated:
Not later than close of business day on October 6, 2000, the agency shall
show good cause why I should not impose sanctions for its failure to
comply with this office's Notice of Hearing Request and Order Directing
Agency to Produce Complaint File. The Agency's failure to show good cause
may result in sanctions, up to and including the issuance of a decision in
favor of Complainant, under the authority of 29 C.F.R. � 1614.109(f)(3).
The agency eventually forwarded the complaint file on October 13, 2000,
but as of the date of the AJ's October 13, 2000 decision, did not respond
to the order to show cause.
From these facts, the AJ determined that the agency failed to show good
cause for its failure to comply with his orders and, on October 13,
2000, issued an Order Imposing Sanctions and Initial Decision. In this
Order, the AJ asked complainant to provide him with a copy of the formal
complaint and EEO Counselor's report, along with any information that
complainant believed would be relevant and useful. The AJ also requested
complainant provide supporting documentation of his compensatory damages
claim. Complainant forwarded the requested information.
After receiving complainant's information the AJ, on November 20, 2000,
issued a decision entitled Decision Issued Pursuant to Order Imposing
Sanctions. In this decision, the AJ noted that the agency consistently
disregarded the applicable statutes, regulations and directives designed
to eliminate employment discrimination in the federal sector. He noted
that the agency consistently delayed in processing the subject complaint,
from the time complainant filed it through the present. The AJ determined
the appropriate sanction was to draw an adverse inference in favor of
complainant and against the agency and to issue a decision in favor
of complainant, finding that the agency had discriminated against
complainant on the basis of disability when it failed to provide him
with a reasonable accommodation.<2>
The AJ then ordered the agency to provide remedial relief, including
compensatory damages in the amount of $50,000 based on complainant's
evidence of non-pecuniary damages, attorney's fees in the amount of
$30,050.00 based on complainant's attorney's itemized statement and
affidavit, and attorney's costs in the amount of $2,756.72. The remedial
relief ordered by the AJ also included, among other things, reinstatement,
back pay and other benefits, recalculation of complainant's retirement
benefits, restoration of sick and annual leave, and payment at full salary
for all periods of leave without pay (LWOP ) after October 1, 1992.
If complainant accepted the offer of reinstatement, the AJ ordered the
agency to provide him with a reasonable accommodation which would allow
him to perform the essential functions of the GS-018011 Safety and Health
Occupational Health Specialist position.
The agency's final order implemented the AJ's finding of no race/color
or age discrimination, but rejected the AJ's imposition of sanctions
and finding of disability-based discrimination.
CONTENTIONS ON APPEAL
The agency raises a number of contentions on appeal. The agency argues
that the AJ erred in sanctioning the agency for �inadvertently failing
to forward a copy of the complaint files,� noting that the conduct in no
way impaired the ability of complainant to present his case. The agency
contends that even if its actions were properly subject to sanctions,
the AJ abused his discretion in imposing what was, in effect, a default
judgment. In so arguing, the agency states that default judgments were
only permissible for bad faith conduct or willful misconduct and not for
�inadequate performance by personnel in EPA's Office of Civil Rights.�
The agency notes that a lesser sanction, such as requiring the agency to
pay expenses incurred due to its delay, would be appropriate. The agency
also states that it has taken �serious corrective action� to improve the
processing of EEO complaints and provides an affidavit from OCR personnel
outlining the steps OCR has taken to ensure that delays do not reoccur.
The agency then notes that the AJ improperly granted relief on a claim
that had been dismissed by the agency and not appealed by complainant.
Specifically, the agency states that complainant's claim that he was
subjected to discrimination when he received a �minimally satisfactory� on
his Fiscal Year 1993 performance appraisal, was dismissed by the agency
on October 12, 1995 and that complainant did not appeal this dismissal.
The agency contends that the AJ therefore improperly addressed and
thereafter provided a remedy for this allegation.
The agency next argues that the AJ erred when he found that complainant's
disability could be accommodated, noting that the reasonable accommodation
in question does not enable complainant to perform the essential functions
of the job and imposes an undue burden on the agency. In so arguing,
the agency contends that even if the AJ's decision to determine all
controverted issues of fact in complainant's favor is appropriate, the
evidence demonstrates that the Rehabilitation Act was not violated and
the Commission cannot disregard the law.
Finally, the agency argues that the AJ erroneously granted compensatory
damages without allowing the agency to offer proof concerning its good
faith efforts to accommodate complainant. In so arguing, the agency
notes that whether complainant was sufficiently accommodated is not
the determinative factor as to whether the agency's efforts were in
good faith.
For these reasons, the agency asks that the Commission reverse the AJ's
Order imposing sanctions and finding disability-based discrimination
and remand the case for a hearing.
In response to the agency's appeal, complainant essentially argues that
the AJ's decision to issue sanctions and find in his favor was proper.
He reiterates the AJ's finding that whether or not the agency acted
in bad faith is irrelevant, as it must show good cause for its failure
to comply with the AJ's orders. Complainant also notes, however, that
the agency's actions were in bad faith, as evidenced by its continual
delay in processing his complaint for the past six years. Finally,
complainant notes that the AJ properly awarded compensatory damages
based on the agency's failure to comply with his orders. In conclusion,
complainant asks that the Commission affirm the AJ's decision.
ANALYSIS AND FINDINGS
The Commission's regulations afford broad authority for the conduct of
hearings by Administrative Judges. See 29 C.F.R. � 1614.109 et seq;
Rountree v. Department of Treasury, EEOC Appeal No. 07A00015 (July
13, 2001). When a complainant or agency fails to comply with an AJ's
order, an AJ may take action against the non-complying party pursuant
to 29 C.F.R. � 1614.109(f)(3), up to and including issuing a decision in
favor of the opposing party. See 29 C.F.R. � 1614.109(f)(3)(iv). Before
sanctions are imposed, the Commission requires the AJ to issue an order
to the offending party that makes clear that sanctions may be imposed
and the type of sanction that could be imposed for failure to comply
with an order unless the party can show good cause for that failure.
See Rountree, supra; Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614, as revised, November 9, 1999, at 7-7, fn. 4.
Furthermore, sanctions must be tailored in each case to appropriately
address the underlying conduct of the party being sanctioned. See Hale
v. Department of Justice, EEOC Appeal No. 01A03341 (December 8, 2000).
A sanction may be used to deter the non-complying party from similar
conduct in the future, as well as to equitably remedy the opposing party.
See id. If a lesser sanction would suffice to deter the conduct and to
equitably remedy the opposing party, an AJ may be abusing his discretion
in imposing a harsher sanction.
In the matter before us, the record establishes that the agency failed to
comply with orders issued by the AJ on two occasions. Indeed, the agency
does not dispute this fact. Moreover, both orders indicated that failure
to comply could result in sanctions, up to and including a decision
in favor of complainant, as the Commission requires. This being so,
sanctions are properly imposed unless the agency can meet the burden
of showing �good cause� for its failure to comply with these orders.
29 C.F.R. � 1614.109(f)(3).
While the agency attempts to belittle the importance of its failure
to comply with the AJ's orders by noting that it ultimately sent the
complaint file after a two and a half month delay, it offers little
explanation for why it never responded to either of the orders.
The agency argues that the inadequate performance of personnel in its
OCR office and the substantial workload within OCR caused the delay in
providing the file, but remains silent on the question of why, even
after receiving an Order to Show Cause, it did not bother to contact
the AJ and explain the delay. Instead, it argues that it has taken
steps to prevent such delays in the future. We note, however, that the
agency's concession that the �inadequate performance� of OCR personnel
caused the delay and its pledge to prevent such delays in the future,
does not establish good cause for the agency's failure to comply with
the orders. The agency is responsible for the inadequate performance
of its employees. The agency also argues that complainant already had
a copy of the Report of Investigation (ROI) and that its failure to
provide the AJ with a copy did not, therefore, impair complainant's
ability to prepare his case. Prejudice to complainant is irrelevant
in this case, however, as the purpose of the sanction is to deter the
agency from ignoring an AJ's orders in the future. The agency cannot
avoid its responsibility to respond in a timely manner to the AJ's
orders by asserting that complainant already had a copy of the ROI.
Accordingly, we find that the AJ properly determined that the agency
failed to show good cause for its failure to comply with his orders.
Moreover, the agency's contentions regarding the alleged impropriety of
the default judgment as a sanction are without merit. The Commission has
previously upheld the issuance of a default judgment as a sanction for the
agency's failure to comply with orders issued by an Administrative Judge.
See Janda v. United States Postal Service, EEOC Appeal No. 07A10018
(March 4, 2002) (upholding AJ's issuance of decision in complainant's
favor as a sanction for agency's failure to respond to complainant's
discovery requests in accordance with AJ's order compelling responses and
failure to response to AJ's order to show cause); Magruder v. United
States Postal Service, EEOC Appeal No. 01984820 (March 17, 1999)
(upholding AJ's issuance of decision in complainant's favor as a
sanction for agency representative's failure to appear timely at the
hearing), request for reconsideration denied, EEOC Request No. 05990640
(March 9, 2001); Pachecho v. United States Postal Service, EEOC Appeal
No. 01970691 (November 25, 1998) (upholding AJ's issuance of a decision
in complainant's favor as sanction for agency's failure to provide
complainant with relevant evidence, failure to respond to pertinent
objections, failure to file timely motions and failure to comply with
discovery orders); Telles v. United States Postal Service, EEOC Appeal
No. 01980931 (November 25, 1998) (upholding AJ's issuance of a decision
in complainant's favor as sanction for agency's refusal to reserve a
room for the hearing and failure to appear without good cause).
In reviewing the record, it is apparent that the agency's failure to
respond to the AJ's orders is merely the final manifestation of its
chronic failure to properly process complainant's complaint. The record
establishes that complainant filed his complaint on January 23, 1995
and that when an investigation was not completed within 180 days,
complainant sent a request for a hearing to the agency's EEO office.
Instead of forwarding this request to the appropriate EEOC office, as
it was required to do pursuant to 29 C.F.R. � 1614.108(g), the agency
ignored the request and issued an acceptance letter in which it accepted
three of complainant's allegations and dismissed two.<3> Moreover,
the agency failed to properly identify complainant's complaint as a
mixed-case complaint, properly appealable to the Merit Systems Protection
Board (MSPB), causing further delay. After this situation was resolved,
complainant requested that the agency reinstate and continue to process
his complaint as an EEO complaint on July 26, 1999, yet the agency took no
action for almost a year. Finally, the agency continued its processing
delays when it failed to respond to first one and then a second order
issued by the AJ.
In these circumstances, we cannot find that the AJ abused his discretion
in choosing to sanction the agency through the issuance of a decision
partially in complainant's favor. As noted above, sanctions may be
used not only to equitably remedy the opposing party, but also to deter
the non-complying party from similar conduct in the future. See Hale,
supra. Given the history of the processing of the subject complaint,
which is rife with error and delay, and the agency's contumacious
repeated failures to respond to the AJ's orders, we find that a lesser
sanction would not deter the agency from similar conduct in the future.
The agency's argument that the sanction of default judgment cannot be
imposed without a finding of bad faith is without merit. See DaCosta,
supra (In determining whether a sanction should be imposed, �the legal
question to be resolved is not whether the agency acted in bad faith,
but rather, whether the agency has shown good cause� for its inaction).
Similarly, the agency's argument that the record establishes that
complainant was not subjected to discrimination is irrelevant, as the
AJ's finding was not based on the record, but on the agency's failure
to respond to his orders.
Accordingly, we find that the AJ's finding that complainant was subjected
to disability-based discrimination when the agency failed to provide him
with reasonable accommodation and thereby subjected him to constructive
discharge was proper.
We note, however, that the agency correctly determined that the AJ
included in his finding of discrimination an allegation that had been
previously dismissed by the agency. Under the previous version of the
29 C.F.R. Part 1614 regulations, which was in force at the time of the
agency's partial dismissal, complainants were required to appeal partial
dismissals to this Commission within thirty days of receipt. Complainant
did not file an appeal. As such, the AJ's finding as it relates to
complainant's Fiscal Year 1993 performance appraisal is improper, as is
the remedial relief the AJ ordered in relation to that claim.
Turning to the issue of compensatory damages, the agency argues on
appeal that because it was not given the opportunity to demonstrate its
good faith efforts to provide a reasonable accommodation, the AJ should
not have awarded compensatory damages. We note, however, that it is
undisputed that the agency was aware that the AJ asked complainant to
submit appropriate supporting documentation if he sought compensatory
damages and that complainant submitted a statement detailing his
emotional distress to the AJ and the agency. There is no indication
in the record that the agency even attempted to rebut complainant's
proof of damages, nor does the agency argue on appeal that it did so.
Moreover, even on appeal, when the agency was aware that in addition
to finding discrimination, the AJ awarded complainant $50,000.00 in
compensatory damages, the agency fails to provide sufficient evidence
of good faith efforts to accommodate complainant, but rather argues
that it should be afforded a hearing at which to present such evidence.
In these circumstances, we find that the agency's argument is without
merit and that the AJ's award of $50,000.00 in non-pecuniary compensatory
damages was proper.
In so finding, we note that complainant indicated that he experienced
stress, worry, frustration, anxiety, and a loss of self-esteem for at
least six years due to the agency's discriminatory actions, as well
as becoming alienated from his family and friends. Several Commission
decisions have awarded compensatory damages in cases somewhat similar
to complainant's. See Van Hoose v. Department of the Navy, EEOC Appeal
No. 01982628 (August 22, 2001) ($50,000.00 in non-pecuniary damages
where discrimination resulted in feelings of worthlessness and stress,
and damaged complainant's relationships with family and friends); Hatton
v. United States Postal Service, EEOC Appeal No. 01985377 (June 6, 2000)
($25,000.00 in non-pecuniary damages based on complainant's testimony
as to emotional injury suffered due to discrimination, manifested
by prolonged feelings of frustration, anger, loss of self-esteem, and
betrayal); and Turner v. Department of Interior, EEOC Appeal No. 01956390
(April 27, 1998) ($40,000.00 in non-pecuniary damages where agency
subjected complainant to discrimination which resulted in depression,
anger, anxiety, frustration, sleeplessness, crying spells, loss of
self-esteem and strained relationships).
As a final matter, we note that the agency did not, on appeal, raise
any contentions concerning the AJ's award of attorney's fees and costs
and find that the award of $30,050.00 in fees and $2,756.72 in costs
was proper.
Accordingly, after a careful review of the record, including both parties'
arguments on appeal, and arguments and evidence not specifically discussed
in this decision, the Commission REVERSES the agency's final order on
the issue of disability discrimination and ORDERS the agency to take
remedial actions in accordance with this decision and the following Order.
ORDER
The agency shall take the following remedial actions:
Within fifteen (15) calendar days after the date this decision becomes
final, the agency shall award complainant $50,000.00 in compensatory
damages.
Within fifteen (15) calendar days of the date this decision becomes
final, the agency shall award complainant $30,050.00 in attorney's fees
and $2,756.72 in costs.
Within thirty (30) calendar days after the date this decision becomes
final, the agency shall offer to reinstate complaint to the GS-018-11
Safety and Occupational Health Specialist Position at its Regional
Office in Denver, Colorado, or a substantially similar position,
retroactive to March 14, 1994, the date complainant went on Leave
Without Pay pending action on his application for disability retirement,
with whatever retroactive seniority complainant would have received
absent discrimination, at the grade and step he would have occupied
had he remained in the agency's employ continuously to the date of the
reinstatement offer. Not later than thirty (30) calendar days after
receiving the agency's offer of reinstatement, complainant shall advise
the agency of whether he accepts or declines the offer.
If complainant accepts this offer, the agency shall provide complainant
with a reasonable accommodation which allows him to perform the essential
functions of the position. In so doing, the agency is advised to seek
guidance from EEOC Enforcement Guidance: Reasonable Accommodation and
Undue Hardship Under the Americans with Disabilities Act (March 1, 1999),
as well as other relevant guidances, regulations, and laws.
The agency shall determine the appropriate amount of back pay (with
interest, if applicable) and other benefits due complainant, pursuant to
29 C.F.R. � 1614.501, less any money complainant received as retirement
benefits that were based on his service with the agency, no later than
sixty (60) calendar days after the date the complainant either accepts
or declines the agency's offer of reinstatement, retroactive to March
14, 1994.
If complainant accepts the offer of reinstatement, the back pay period
shall end on the date complainant re-enters duty.
If complainant declines the offer of reinstatement, the back pay period
shall end on the date complainant declines the offer. The agency
shall then recalculate complainant's future retirement eligibility and
benefits as if he had served continuously with the agency, and received
his full salary, promotions, step increases, cost of living increases,
and other benefits, from the date his employment with the agency
began in November 1976 to the date complainant declines the offer
of reinstatement. The agency shall also recalculate complainant's
retirement benefits to account for the longer period of employment
and additional earnings, and higher grade and step levels, starting
March 14, 1994. The agency shall use the date complainant declines
the agency's offer of reinstatement as his new date of retirement.
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
the complainant for the undisputed amount within sixty (60) calendar
days of the date the agency determines the amount it believes to be due.
The 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."
The agency shall restore and credit to complainant all sick and annual
leave used after October 1, 1992, the approximate date on which the agency
refused to continue providing complainant with a reasonable accommodation.
The agency shall amend complainant's leave records to reflect restoration
of leave. If complainant declines the agency's offer of reinstatement,
the agency shall include in complainant's back pay an additional payment
(with interest, if applicable) for all such restored leave for which
complainant would have been entitled to payment upon retirement.
The agency shall pay complainant full salary (with interest, if
applicable) for all periods of time complainant was absent from work on
LWOP on or after October 1, 1992. The agency shall amend complainant's
attendance records to effect removal of the LWOP. If payment to
complainant for any of the time he was on LWOP requires crediting or
reimbursing the agency's leave bank or leave transfer programs, the
agency and complainant shall cooperate in computing any adjustments
or credits for any leave bank or leave transfer benefits complainant
received since October 1, 1992.
The agency shall provide training in the obligations and duties imposed
by the Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. to the management officials
at the agency's Region 8 facility who were involved in the denial of
complainant's reasonable accommodation request. This training shall
place a special emphasis on managerial responsibilities with respect to
eliminating discrimination and retaliation in the workplace, as well as
treating individuals with disabilities with respect.
The agency shall post the attached notice, as described below.
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 complainant,
including evidence that the corrective action has been implemented.
INTERIM RELIEF (F0900)
When the agency requests reconsideration and the case involves a
finding of discrimination regarding a removal, separation, or suspension
continuing beyond the date of the request for reconsideration, and when
the decision orders retroactive restoration, the agency shall comply with
the decision to the extent of the temporary or conditional restoration
of the complainant to duty status in the position specified by the
Commission, pending the outcome of the agency request for reconsideration.
See 29 C.F.R. � 1614.502(b).
The agency shall notify the Commission and the complainant in writing at
the same time it requests reconsideration that the relief it provides
is temporary or conditional and, if applicable, that it will delay
the payment of any amounts owed but will pay interest from the date
of the original appellate decision until payment is made. Failure of
the agency to provide notification will result in the dismissal of the
agency's request. See 29 C.F.R. � 1614.502(b)(3).
POSTING ORDER (G0900)
The agency is ordered to post at its Denver 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.
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 (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
December 23, 2002
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 Environmental Protection
Agency, Region 8 facility in Denver, Colorado (hereinafter �EPA�).
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 EPA supports and will comply with such federal law and will not
take action against individuals because they have exercised their rights
under law.
The EPA was found to have unlawfully subjected the individual affected by
the Commission's findings to discrimination on the basis of disability
when it failed to provide an employee with a reasonable accommodation
and thereby subjected him to constructive discharge. The agency was
therefore ordered to (1) pay complainant $50,000.00 in compensatory
damages, $30,050.00 in attorney's fees and $2,756.72 in costs;
(2) offer to retroactively reinstate the employee; (2) determine the
appropriate amount of back pay and other benefits owed complainant; (3)
credit to the employee all sick and annual leave used as the result of
the agency's discriminatory actions; (4) pay the employee for any leave
without pay used as a result of the agency's discriminatory actions; (5)
provide training in EEO matters to the responsible management officials;
and (6) post this notice.
The EPA 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 The formal complaint included two additional
allegations in which complainant claimed that he was discriminated
against on the basis of race/color, age and disability when: he received
a �minimally successful performance appraisal for Fiscal Year 1993;
and, the personnel action effective November 9, 1994 for �Separation
of Service� should have been effective December 11, 1994. The agency
dismissed these allegations on procedural grounds on October 12, 1995.
Complainant did not appeal this dismissal.
2 The AJ found that complainant did not establish that he was subjected
to race/color or age discrimination.
3 Under the previous version of 29 C.F.R. Part 1614, complainants were
required to send their requests for an EEOC hearing to the agency's
EEO office. The regulations were revised, effective November 9, 1999,
to require complainants to submit their hearing requests directly to
the appropriate EEOC office.