Destruction of evidence by agency management
David B. Rehbein v. Department of the Treasury
01A32184 & 01A43703
February 15, 2005
.
David B. Rehbein,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
Agency.
Appeal Nos. 01A32184 &
01A43703
Agency Nos. 00-4029; 99-4073;
98-4020; 98-4133
Hearing Nos. 350-99-8276X;320-2003-0866
340-AO-3269X
DECISION
Complainant timely initiated appeals from the agency’s final orders
concerning his equal employment opportunity (EEO) complaints 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 appeals are accepted pursuant to 29 C.F.R. § 1614.405.
For the following reasons, the Commission reverses the agency’s final
orders in part.
The record reveals that complainant, a Revenue Officer, GS-12, at the
agency’s Farmington, New Mexico facility, filed formal EEO complaints on
October 31, 1997, March 18, 1998 December 28, 1998, October 22, 1999.
He alleged that the agency had discriminated against him on the bases
of his race (Caucasian), gender (male), and age (D.O.B. 8/30/50) and in
retaliation for prior EEO activity when:
(1) on May 5, 1997 complainant was denied a temporary management
assignment;
he was denied certification for management in June 1997;
he was not selected for the position of Supervisory Revenue Officer
under Vacancy Announcement No. 0965 S98No46B in March 1998;
he was not selected for Supervisory Revenue Officer under Vacancy
Announcement MEL-SC-98-0275 in August 1998;
he was not selected for Supervisory Revenue Officer under Vacancy
Announcement MEL-SC-99-197 in July 1999;
he was not selected for Supervisory Revenue Officer under Vacancy
Announcement MEL-SC-00-011 in December 1999;
he was subjected to a hostile work environment because he engaged in
protected EEO activity.
Complaints I &II(Agency Nos. 98-4020; 98-4133)
Since the procedural background of the two complaints is different, we
will discuss each separately. Under complaint I, at the conclusion of
the investigation, complainant was provided copies of the investigative
report and requested a hearing before an EEOC Administrative Judge (AJ).
The case was forwarded to the EEOC Denver District Office for assignment
to an AJ.
After notifying the parties that there were no material facts in dispute,
the AJ issued a decision without a hearing, finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie
case of discrimination on the bases of his race and his age because the
person chosen for a temporary management assignment was of the same race
and not significantly younger than complainant. He further found that
there was no genuine issue of material fact that the agency’s reasons
for not selecting complainant for a temporary management role, were a
pretext for discrimination. In particular, the AJ found that the agency
stated that no travel funds were available for complainant to travel to
Albuquerque and Santa Fe.
The AJ also found that even though complainant was adversely affected
by his supervisor’s failure to certify him for management, there was no
evidence that others were treated more favorably than him. The AJ found
that complainant’s first level supervisor (S1) was aware of complainant’s
protected activity but the personnel specialist responsible for rating
his application for the subject position, was not aware. He found that
even if complainant was awarded more points to negate S1’s low evaluation
of him, complainant would not have had enough points to be interviewed.
Based on these facts, the AJ determined that complainant did not establish
a causal connection between his protected activity and his non-selection
in March 1998.
Complaints III&IV (Agency Nos. 00-4029; 99-4073)
Following an investigation of complainant’s complaints, he requested
a hearing before an EEOC AJ. The complaints were assigned to the
Los Angeles District Office for a hearing. The AJ assigned to the
case granted the agency’s motion for summary judgment in part.<1> She
held a hearing on the issue of whether the agency discriminated against
complainant by not selecting him for the position of Supervisory Revenue
Officer under Vacancy Announcements MEL-SC-98-275, MEL-SC-99-197 and a
position in December 1999, because of retaliation. She also considered
the issue of whether he was subjected to a hostile work environment in
retaliation for his EEO activity.
The AJ found that complainant failed to establish a prima facie case of
reprisal in connection with the August 1998 selection because those on the
interview panel were unaware of his EEO activity. Regarding complainant’s
claim that management’s actions leading up to the non-selection created a
hostile work environment, the AJ concluded that there was no evidence of
a motive to retaliate against complainant. Specifically, she found that
S1 had certified complainant with a rating of “good” on the Management
Achievement Program (MAP) Entry Level of Readiness criteria, despite
complainant’s previous EEO activity.
The AJ found that it was “inappropriate” for S1 to make comments about
complainant’s EEO activity in the presence of another subordinate
employee, but she ultimately found that the comments had no influence
on his decision not to select complainant. The AJ also found that S1
made the statement to the EEO counselor that, “complainant’s complaint
[about a temporary manager’s position] may have been the straw that broke
the camel’s back.” Nevertheless, the AJ concluded that the comments were
not sufficiently severe or pervasive to create a hostile work environment
based on reprisal.
Addressing the other non-selections, the AJ found that for the July
1999 selection, complainant failed to establish a prima facie case
of reprisal because two of the three panel members were unaware of his
prior EEO activity. Although one panel member was aware of complainant’s
protected activity, the AJ concluded that the agency’s reasons for making
its selection were legitimate and there was no evidence that it was
motivated by retaliation. With regard to the December 1999 selection,
the AJ concluded that the individual selected had engaged in protected
activity and therefore, complainant did not establish a prima facie case
of retaliation.
Complainant’s Appeal
In his appeal, complainant objected to the agency’s failure to consolidate
his four complaints for investigation and hearing. He also objected to
the AJ’s separation of the complaints for hearings by two different EEOC
District Offices and to the AJs’ grant of summary judgment. Specifically,
complainant, who proceeded pro se, stated that he was notified of the
potential for summary judgment, but he was not informed of the party to
whom the AJ was proposing granting judgment. He also complained that
the AJ did not inform him of the undisputed facts on which he relied,
among other things. Complainant argues that there was direct evidence
of discrimination and that his qualifications for the positions for
which he applied were plainly superior to those of the selectees.
More significantly, complainant submitted a copy of a Report of
Investigation authored by the agency’s Office of Inspector General
(IG) dated May 18, 2000. In the report, the IG concluded that S1 had
deliberately destroyed evidence relevant to an EEO complaint and that
he had made false statements in sworn affidavits to EEO investigators
about the destruction. The report concluded that S1’s statements that he
never received a memorandum from complainant’s previous supervisor (S2),
were false. According to the report, the IG also initiated a separate
investigation against S2 related to the destruction of evidence after
he was implicated by S1.
The Commission notes that, as reflected in the record before us, the EEOC
AJ (Complaints III&IV) was aware of the circumstances surrounding the
destruction of evidence. She received testimony from the agency’s EEO
counselor who related that S1 admitted destroying a document. S1 also
admitted in his testimony that he destroyed the memorandum rather
than provide it to complainant or to the counselor. He described the
memorandum as outlining the details of a meeting between S2 and his
subordinates which included complainant. According to S1, he requested
the memo from S2 who made comments about his subordinates’ readiness
for management. S1 also testified about the agency’s investigation of
his actions.<2>
Agency’s Opposition
The agency argued that the AJ correctly found that complainant failed
to establish a prima facie case of age discrimination because he failed
to identify individuals outside of his protected group who were treated
more favorably. The agency pointed out that those employees who were
selected for temporary details to management positions were also over
the age of forty. The agency also argued that the AJ was correct in
granting summary judgment regarding the failure to certify complainant for
management, because S1 had signed the appropriate forms to certify him.
Since S1 signed the forms, the agency argued that complainant did not
lose any benefit or privilege of employment that others outside of his
protected group were granted. Moreover, the agency argued that because
complainant only cited the difference in treatment he received in being
certified in 1996 but not in 1997, he did not establish he was treated
less favorably than an individual outside of his protected group.
Addressing the issue of retaliation, the agency argues that we need
not rely on the credibility of S1 because complainant’s own statements
establish that he did not suffer any adverse action. The agency
also argues that complainant did not establish he engaged in any
protected activity prior to any agency action. The agency contends
that complainant’s grievance filed over a performance evaluation did not
allege discrimination and, therefore, was not protected EEO activity.<3>
The agency further contends that his threat to file a discrimination
complaint did not constitute protected activity.
The agency disputes complainant’s contention that S1 made any statements
which could be interpreted as direct evidence of discrimination.
It argues that S1’s reference to complainant’s “complaints [as being]
the straw that broke the camel’s back” and that he “wanted complainant
to be quiet and not hear anymore complaints,” were taken out of context
and only referred to his negative comments in general, not his protected
EEO activity.
ANALYSIS AND FINDINGS
As a preliminary matter, the Commission finds that the processing of these
cases was problematic at best and contributed, perhaps, to the oversights
we discuss below. We take note of complainant’s repeated attempts to
have the cases consolidated at the hearing stage which we believe was the
proper course to take. As the Commission has stated, fragmentation of a
complainant’s legal claim compromises the presentation of an integrated
and coherent claim. Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614 (EEO MD-110), ch.5-5 (November 9, 1999).
First we address the Commission’s standard of review when there has
been a hearing. The Commission will uphold all post-hearing factual
findings by an AJ if supported by substantial evidence in the record. 29
C.F.R. § 1614.405(a). Substantial evidence is defined as “such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion.” Universal Camera Corp. v. National Labor Relations Board,
340 U.S. 474, 477 (1951) (citation omitted). A finding regarding
whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ’s
conclusions of law are subject to a de novo standard of review, whether
or not a hearing was held.
In these cases, we find that in complaints III and IV, the AJ’s decision
is not supported by substantial evidence in the record. We further
find that the AJ’s (Complaint I&II) grant of summary judgment discussed
further below, was error. In both cases the AJs ignored direct evidence
of retaliation for complainant’s EEO activity which would have changed
their analyses of these complaints. The AJs also ignored evidence
of destruction of evidence relevant to these complaints as well as
evidence that the agency’s main witness, S1, made false statements to
EEO investigators.
Direct Evidence
Turning first to the direct evidence, direct evidence is either written
or verbal evidence that on its face demonstrates bias and is linked
to an adverse action. Grant v. Hazalett Strip Casting Corp. 880 F.2d
1564 (2d Cir. 1989). Where there is direct evidence of discrimination,
there is no longer the need to prove a prima facie case or facts from
which an inference of discrimination can be drawn. TWA v. Thurston,
469 U.S. 111, 121 (1985). The McDonnell Douglas test is inapplicable
where complainant presents direct evidence of discrimination. Id.
Here, S1’s statements that complainant’s complaints about the temporary
management positions in Santa Fe “may have been the straw that broke the
camel’s back” and that he “wanted the complainant to be quiet and not hear
of anymore complaints” were direct evidence of S1’s discriminatory intent.
On their face, the statements show S1’s displeasure with complainant’s
protected activity. Furthermore, S1’s statements were linked to adverse
action he took in June 1997 when he wrote a memorandum telling complainant
he would not certify him for management positions.
The agency contends that this statement was taken out of context and
was not direct evidence, however, the EEO counselor testified that
during his interview of S1, S1 was referring to complainant’s previous
EEO complaint activity. TR at 80. Furthermore, the counselor stated
that he was questioning S1 about his failure to certify complainant for
management at the time he made the statement. The counselor interpreted
his statement to mean that he would not be certifying complainant
for management positions. TR at 89. This was later borne out by S1’s
memorandum to that effect.
Moreover, the evidence is clear that S1 was aware of complainant’s
protected activity at the time he made the statements. S1 confirmed that
complainant complained to him that he was being discriminated against
in not being considered for the Santa Fe openings and that he would be
filing an EEO complaint.<4> Tr. 171. Consistent with Commission policy,
complainant’s statement to S1 that he thought he was being discriminated
against as well as his statement of intent to file an EEO complaint
are both forms of opposition which are considered to be protected
EEO activity. EEOC Compliance Manual Section Eight “Retaliation.”
(May 1990). As outlined below, this evidence along with evidence of
S1’s obstruction of the Commission’s process, S1’s false statements,
and S2’s memorandum, persuade us that the two managers were upset by
complainant’s EEO activity. For that reason, we conclude they intended
to hinder his advancement to higher level positions.
Destruction of Evidence
The record discloses that there was evidence in both investigative files
of destruction of evidence relevant to the complaints. The AJ (Complaints
III&IV) heard testimony from the EEO counselor about the destruction but
did not address its impact on her analysis of the case. This was error.
The Commission has the authority to protect the integrity of the
administrative process and must take appropriate action to guard
against abuse or obstruction by either party. DaCosta v. Department
of Education, EEOC Appeal No. 01995992 (February 25, 2000). See Bass
v. Department of Justice, EEOC Request No. 05960082 (February 9, 1996)
(agency’s destruction of all comparative evidence warrants an adverse
inference). It is apparent that the agency failed to take appropriate
action to preserve the memorandum requested by the EEO counselor and that
S1 by his own admission, destroyed the evidence rather than provide it
to him. Where, as here, the agency failed to provide certain records in
it possession or to maintain records it was required to preserve, the
Commission is empowered to draw an adverse inference that the evidence
would have been unfavorable to the agency or favorable to complainant.
29 C.F.R. § 1614. 404 (c)(1). Applying this principle, the Commission
concludes that this document would have reflected unfavorably on the
agency and would have evidenced an intent to retaliate against complainant
for his opposition to and participation in EEO activity.<5>
Aside from the corrective action we have taken to draw an adverse
inference, we discuss below the impact of the adverse inference, S1 and
S2’s actions and other evidence of discrimination.
Summary Judgment (Complaint I&II)
Normally, 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.
Reviewing complaints I and II, the AJ granted summary judgment on all
of the alleged bases as to all issues raised, yet the record reflected
that he too was aware that the agency’s IG was investigating S1’s
false statements.<6> Additionally, the record before him contained
the report of the EEO counselor describing S1’s statements which we
have already concluded were direct evidence of a retaliatory motive.
The EEO counselor’s report described the missing evidence as well as
the fact that S1 admitted to its destruction. Any one of these factors
should have afforded a reason to the AJ to hesitate before proceeding
in a summary fashion. At the very least, S1’s credibility was squarely
at issue such that summary judgment was not appropriate.
The agency makes light of its own findings, contending that S1’s false
statements were not linked to actions raised in the complaint, but the
Commission disagrees. S1’s false statements related directly to the
document about which we have drawn an adverse inference. His effort to
cover it up raises the inference that it was damaging in its content.
Furthermore, since S1 is one of the central management figures in the
complaints, his lack of truthfulness, his efforts at concealment and his
incriminating statements should have left little doubt about his motive
to retaliate.
Based on our conclusion about the evidence of S1’s veracity and
discriminatory animus, summary judgment was not appropriate on the issue
of retaliation. However, there is no need to remand these cases for
a hearing as there is enough evidence on the record before us to draw
final conclusions regarding discrimination.
We turn first to S2, complainant’s former first line supervisor at the
time he requested to be considered for a temporary management role.
The record reveals that he was at the heart of complainant’s pending
grievance at the time he wrote the disputed memorandum in May 1997.
He had certified complainant for management previously, but, according
to the IG report, wrote negative comments about complainant’s readiness
for management. The IG reported that S2 admitted the negative comments
were written “in error.” S2 stated he wrote this memorandum at the
urging of S1. We have already drawn an adverse inference that this
memorandum would have reflected unfavorably on the agency and that it
contained evidence of an intent to retaliate against complainant.
We conclude therefore, that S2’s turnabout in his opinion of complainant
and his reasons for drafting the memorandum were, more likely than not,
motivated by animus for complainant’s EEO activity. This memorandum
then formed the basis for S1’s denial of certification which occurred
the next month. Although S1 offers other reasons for his action, his
statements which we concluded were direct evidence of retaliation are
dispositive of his reasons.
According to the agency’s MAP criteria, S1’s failure to certify
complainant for management affected his ability to be promoted to
supervisory management positions or to be considered for “acting”
experience. Without such experience, complainant would not measure
up against other candidates. The criteria followed by the personnel
specialist required her to rate candidates for supervisory positions
in a category assessing the amount of management experience each had.
The less experience they had, the lower the score.
In any event, the record contains the testimony of the Assistant Division
Director, Southwest Region, who related that complainant was not selected
because S1 did not recommend him. In particular, he recounted that the
selecting official for a supervisory position in San Diego in May or June
1997, relied on S1’s representations about complainant in deciding not
to select him. This occurred at the same time S1 made discriminatory
comments and obstructed the Commission’s processes for which we hold
the agency responsible.
We also conclude that the AJ’s finding (Complaints III&IV) that S1 had
no significant input into complainant’s consideration for supervisory
revenue positions was not supported by substantial evidence in the record.
Instead, the record reflects that other selecting officials spoke with S1
in June 1998 and in August 1998 prior to making their selections. By this
time, complainant had filed two more EEO complaints. After speaking
with S1 about possibly selecting complainant for non-competitive slots,
neither official chose him for job openings. This evidence reflected
that S1’s discriminatory animus, more likely than not, tainted the
agency’s selection process.
For these reasons and based on the record before us, the Commission finds
that complainant has demonstrated by a preponderance of the evidence that
the decision not to certify him for management beginning in June 1997
and his non-selection for a position as a supervisory revenue officer
were based on retaliation for his threats to file an EEO complaint and
his pursuit of discrimination claims. We further conclude that the
preponderance of the evidence did not demonstrate discrimination based
on complainant’s age, race or gender.
Therefore, after a careful review of the record, including complainant’s
contentions on appeal, the agency’s response, and arguments and evidence
not specifically addressed in this decision, we reverse the agency’s
final decision in part and remand this case to the agency to take remedial
actions in accordance with this decision and Order below.
ORDER (D0403)
The agency is ordered to take the following remedial action:
(1) Within 60 days of the date this order becomes final, the agency will
promote complainant to the position of Supervisory Revenue Officer GS-13,
or if not available, a substantially equivalent position in terms of
responsibility and pay. This appointment will be retroactive to the
effective date of the selection for the position located in San Diego
advertised between May and June 1997;
(2) The agency shall pay complainant back pay retroactive to June 1997
or the effective date of its selection for a supervisory position in
San Diego. The agency will determine the appropriate amount of back
pay, with interest, and other benefits due complainant, pursuant to 29
C.F.R. § 1614.501, no later than sixty (60) calendar days after the date
this decision becomes final. The 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.”
(3) The agency will expunge any and all agency records regarding or
referring to the denial of certification of complainant for management
from May 1997 forward which were found to be discriminatory and any other
agency records or memoranda which referred to the discriminatory conduct.
(4) The agency will require S1 and S2 to take 8 hours of training
in the provisions of Title VII, specifically the prohibition against
retaliation.
(5) The agency will consider taking disciplinary action against
S1,who was responsible for the decision not to certify complainant for
management, and S2, who authored a memorandum from which an adverse
inference of discriminatory intent was drawn. The agency shall report
its decision. 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.
(6) The issues of compensatory damages, attorney’s fees and costs
are REMANDED to the Hearings Unit of the Los Angeles District office.
Thereafter, the Administrative Judge shall issue a decision on these
issues in accordance with 29 C.F.R. § 1614.109, and the agency shall
issue a final action in accordance with 29 C.F.R. § 1614.110 within forty
(40) days of receipt of the Administrative Judge’s decision. The agency
shall submit copies of the Administrative Judge’s decision and the final
agency action to the Compliance Officer at the address set forth below.
(7) The agency will post a notice as set forth 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 backpay and other benefits due complainant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Southwest District offices copies
of the attached notice. Copies of the notice, after being signed by the
agency’s duly authorized representative, shall be posted by the agency
within thirty (30) calendar days of the date this decision becomes final,
and shall remain posted for sixty (60) consecutive days, in conspicuous
places, including all places where notices to employees are customarily
posted. The agency shall take reasonable steps to ensure that said
notices are not altered, defaced, or covered by any other material.
The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled “Implementation of the Commission’s Decision,” within ten (10)
calendar days of the expiration of the posting period.
ATTORNEY’S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. § 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney’s fees incurred in the processing of the complaint.
29 C.F.R. § 1614.501(e). The award of attorney’s fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency — not to the Equal Employment Opportunity Commission,
Office of Federal Operations — within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney’s fees in accordance with 29 C.F.R. § 1614.501.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0501)
Compliance with the Commission’s corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency’s report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission’s
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. § 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission’s
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
“Right to File A Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. § 1614.409.
STATEMENT OF RIGHTS – ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party’s timely request for reconsideration. See 29
C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. § 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (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
February 15, 2005
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant’s representative
(if applicable), and the agency on:
__________________
Date
______________________________
Equal Opportunity Assistant1The AJ granted the agency’s motion for summary
judgment for the selections under Vacancy Announcements MEL-SC-99-197,
and MEL-SC-00-011, on the bases of race, gender and age but denied
summary judgment for the basis of reprisal.
2According to S1’s testimony, the agency proposed his suspension and
removal from federal service but settled the charges without terminating
his employment. At the time of his appearance at the hearing, he was
employed as a Program Analyst.
3We note that the agency has taken inconsistent positions on this
issue as it previously argued that certain of complainant’s claims of
discrimination should be dismissed because they were already raised
during a grievance process where he raised the issue of discrimination.
Our review of the grievance records reveals that complainant did raise
discrimination as an issue.
4With regard to reprisal discrimination, the Commission has stated that:
The anti-reprisal provision of Title VII protects those who participate
in the EEO process and also those who oppose discriminatory employment
practices. Participation occurs when an employee has made a charge,
testified, assisted, or participated in any manner in an investigation,
proceeding or hearing. Participation also occurs when an employee files
a labor grievance, if the employee raised issues of unlawful employment
discrimination in the grievance. . . . A variety of activities have been
found to constitute opposition . . . . Because the enforcement of Title
VII depends on the willingness of employees to oppose unlawful employment
practices or policies, courts have interpreted section 704(a) of Title
VII as intending to provide ‘exceptionally broad protection to those who
oppose such practices’. . . .” Whipple v. Department of Veterans Affairs,
EEOC Request No. 05910784 (February 21, 1992) (citations omitted).
Finally, we note that Title VII protects a person “where the employee
has a reasonable, good faith belief that the challenged employment
practice violates Title VII, even if the belief is later found to be
mistaken. . . . The mistaken belief may be one of law or of fact.”
Whipple, supra, quoting Wolf v. J.I. Case Co., 617 F. Supp. 858, 868
(E.D. Wis. 1985).
5S2 told the investigator for the Inspector General that S1 requested he
write the memorandum which he said outlined why complainant should not
be considered for an available temporary management position, as well as
other employees’ statements considered to be negative towards management.
6The record discloses that the agency referenced the investigation in its
Motion for a Recommended Decision without a Hearing dated December 19,
2003 at p. 33.
