John E. Whidbee v. Department of the Navy
01A40193
3/31/05
.
John E. Whidbee,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A40193
Agency No. DON-02-4274A-080
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. § 2000e et seq. The appeal is accepted pursuant
to 29 C.F.R. § 1614.405. For the following reasons, the Commission
finds that the agency discriminated against complainant, and REVERSES
and REMANDS the agency’s final decision.
I. BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Sheet Metal Mechanic, WG-3806-10, at the agency’s Naval Air Depot,
Jacksonville Detachment in Norfolk, VA. Complainant sought EEO counseling
and subsequently filed a formal complaint on July 1, 2002, alleging that
he was discriminated against on the basis of race (African-American) when:
(1) In November 2001, S1 was overheard by another employee (CW1) to
say that Complainant was a “stupid n_gger,” and that S1 had problems
dealing with minorities;
(2) In January 2002, S1 told another employee that he had problems
dealing with minorities and was observed performing the “Nazi” hand
gesture in greeting employees;
On January 25, 2002, S1 told Complainant and another employee to go
out into the rain to procure airplane parts using a particular piece
of equipment they were not qualified to use, and S1 proceeded to “dress
him down” in front of coworkers and other supervisors;
(4) On February 15, 2002, during a training session, S1 demanded in
a hostile and embarrassing manner that Complainant turn over blueprints;
(5) In March 2002, S1 wrote on a blackboard in another shop area,
“If you want to be lazy and lay down on the job to (sic) come work in
my shop.” Complainant took that to mean that S1 was referring to him;
(6) On March 16, 2002, Complainant and a white employee (CW2) witnessed
a verbal altercation between S1 and another Black employee, during
which S1 became angry;
(7) On March 18, 2002, after refusing to write a statement, S1 gave
complainant a direct order to write a statement; however, when a white
employee (CW2) who had witnessed the same incident refused to write a
statement, S1 did not give him a direct order;
(8) On March 19, 2002, after a contractor refused to review S1’s
report concerning the March 16, 2002, incident, S1 read a portion of
the report out loud, specifically the portion that contained the words
“Negro,” “Black,” and “African-American,” which offended complainant;
(9) On May 1, 2002, complainant’s third level supervisor (S3) made a
statement that led complainant to believe that the supervisors could do
anything they wanted and upper management would support them, and not
complainant, if he asked for assistance concerning his work environment;
(10) On May 8, 2002, during a shop meeting, after complainant
questioned a change, another White employee (CW4) stood up and shouted
at complainant that “[S1] is the man and that there was not a God damn
thing [complainant] could do about it,” which caused complainant to
feel unsafe, and S1 did not defuse the situation;
(11) On May 9, 2002, S1 neglected to defuse a confrontation between
Complainant and a White male employee (CW4) with whom he has had previous
confrontations concerning the assignment of work;
(12) On May 10, 2002, S1 called a shop meeting and, while standing in
back of Complainant, informed all employees that if they wanted to file
an EEO complaint, they needed to discuss it with him first; and
(13) On May 31, 2002, a White employee (CW4) told Complainant that
he heard that Complainant had filed a grievance against S1 and that
Complainant needed to get his “black ass back to work,” but S1 did not
take action.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge
or alternatively, to receive a final decision by the agency. When
complainant failed to respond within the time period specified in 29
C.F.R. § 1614.108(f), the agency issued a final decision.
In its FAD, the agency concluded that management’s alleged actions, viewed
cumulatively, were not sufficiently severe or pervasive to constitute
harassment under Title VII. The complainant did not submit arguments
on appeal. The agency argues on appeal that the record shows that the
discriminatory actions alleged by complainant did not actually occur
as he described and that even if they had, they were not sufficiently
severe or pervasive to constitute harassment.
II. STANDARD OF REVIEW
The decision on an appeal from an agency’s final action shall be based
on a de novo review of the facts and the law. 29 C.F.R. § 1614.405(a).
III. ANALYSIS
After a review of the record in its entirety, we find that a preponderance
of the evidence establishes that complainant’s allegations (1), (2),
(3), (4), (6), (7), and (12) did occur and were racially motivated.
Complainant’s supervisor used the slur “n_gger” in complainant’s presence,
verbally attacked him but did not do so to white employees who behaved
similarly, gave complainant an order but did not give an order to a
similarly situated white employee, intentionally offended complainant
because of his race, and attempted to interfere with the EEO process.
We conclude that taken as a whole these incidents constitute illegal
harassment. See McAllister v. Department of Defense, EEOC Request
No. 05960416 (May 22, 1997); see also Yabuki v. Department of the Army,
EEOC Request No. 05920778 (June 4, 1993); see also Brooks v. Department
of the Navy, EEOC Request No. 05950484 (June 26, 1996). We also find
that the supervisor’s action described in allegation (12) constitutes an
independent act of unlawful retaliation against complainant by interfering
with complainant’s EEO activity. See Binseel v. Department of the Army,
EEOC Request No. 05970584 (October 8, 1998); see also Marr v. Department
of the Air Force, EEOC Appeal No. 01941344 (June 27, 1996).
A. Findings of Fact
Initially, we find that complainant’s supervisor (S1) had a history
of poor relations with minority employees. One of complainant’s
white coworkers (CW2) observed that S1 does not work well with racial
minorities. He observed that S1 generally treated minority employees
differently in assigning work and communicating with them. ROI at 136-7.
CW2 stated, “His (S1) major problem with anyone in our shop is the
majority of minorities in our shop.” He also stated:
“He seems to want to check on the progress of their jobs more than he does
on the Caucasians. On a two-person job he has the blacks by themselves,
but two Caucasions are always placed on a job requiring two people.
Also, his general demeanor when he is speaking to the minorities in the
shop, he has a different tone in his voice. His tone is more anxious
or intense or aggravated. It is a whole different demeanor, he is more
aggravated when trying to communicate with minorities.”
A black coworker (CW1), also complainant’s union representative, confirmed
that S1 does not work well with minority employees. ROI at 147. We also
note that, as alleged in allegations (1) and (2), the record suggests
that S1 admitted to having “problems with minorities.” A white coworker
(CW2) heard that S1 made this statement from another employee. ROI at 5.
Complainant heard the same thing. ROI at 104. S1 claims that if he
indicated he had a problem with certain employees by using the word
“minority,” he was referring to a numerical minority of his employees,
not racial minorities. ROI at 119. We find S1’s explanation entirely
unpersuasive.
Next, we find that complainant’s supervisor (S1) used the slur “n_gger”
in complainant’s presence and at least once in reference to complainant.
Complainant states that, in November 2001, while having a conversation
with CW1, they overheard S1 say “He is a stupid n_gger.” Report of
Investigation (ROI) at 6; ROI at 103. CW1 confirmed that he heard
S1 use the word on several occasions. ROI at 146. He wrote in an
email to S1 that S1 “utter[s] the N-word like popcorn being cooked at
a multi-plex theater.” CW1 specifically recalled hearing S1 refer to
complainant as a “stupid n_gger” in January 2002. ROI at 146-47. S1,
however, denies that he ever made such statements. ROI at 118. We find
that the weight of the evidence indicates that S1 did, indeed, use the
slur in complainant’s presence. Two witnesses claim to have heard it.
We note that complainant and CW1 do not recall the same incident, but
considering that the record indicates S1 used the term liberally, we do
not find that complainant’s and CW1’s testimony is undermined by this
discrepancy. While S1 denies that he has used the term “n_gger,” we find
that his denial lacks credibility. The record contains contradictions
and dubious assertions by S1, as detailed herein. We also note that,
as alleged by complainant, S1 used the Nazi salute in front of his
employees, indicating an existing insensitivity to minority employees.
Regarding allegation (3), we find that S1 verbally abused complainant
because of his race on January 25, 2002 when he “dressed him down” in
front of coworkers and other supervisors. Complainant stated that S1
ordered him to go out in the rain and operate dangerous equipment that
he was not trained to use. ROI at 104-105. When complainant refused,
S1 yelled at him in a “sharp, negative, and demeaning” manner, according
to complainant. ROI at 105. The other employee sent to do the task
was white, ROI at 13, but was not “dressed down.” ROI at 138. Both CW1
and CW2 state that it is not customary to work in the rain and that the
agency facility does not have proper rain gear. ROI at 138 and 149.
CW1 witnessed the incident and heard S1 refer to complainant as “that
stupid n_gger” under his breath. ROI at 148. CW2 (white) stated
that “he (S1) would never tell me to work in the rain.” ROI at 143.
While S1 stated that he did not yell at complainant and that rain gear
was available, ROI at 119-120, the overwhelming weight of the evidence
confirms complainant’s version. We also find that the incident was
racially motivated, given CW1’s testimony regarding S1’s use of the word
“n_gger,” S1’s disparate treatment of complainant compared to a white
employee, and S1’s problems working with minorities.
We find that S1 again yelled at complainant because of his race on
February 15, 2002, as alleged in allegation (4). Complainant stated
that at the time of the incident he was training two white employees.
ROI at 5. During the training, complainant realized that the blueprints
with which they were working were the wrong ones. Id. One of the
trainees demanded that complainant give him the blueprints so he could
proceed with the work. Id. Complainant refused, explaining that
the blueprints were wrong. Id. The trainee then went to retrieve S1
to force complainant to hand over the blueprints. Id. S1 came and
demanded the blueprints in a hostile and embarrassing manner in front
of complainant’s colleagues. Id. CW2 confirmed that the incident
occurred as complainant alleged. ROI at 138. S1 claims that complainant
raised his voice and was antagonistic after S1 offered to assist him.
ROI at 120. We, however, find CW2’s testimony to be powerful evidence of
the truth of this allegation. The record reveals no apparent reason for
him to be biased towards either party. We, furthermore, find that S1’s
hostile behavior occurred as a result of complainant’s race because of
S1’s offensive explicitly racial behavior in the past, problems working
with racial minorities, and the fact that he sided with a white trainee
over complainant, a long-time employee and expert in the field.
We find, as alleged in allegations (6) and (7), that complainant
witnessed a verbal altercation between S1 and CW1 on March 16, 2002,
after which S1 ordered complainant to write a statement about what he saw.
Complainant claims he was given an order, but that the other witness,
CW2, a white coworker, was not ordered to write a statement. ROI at
6 and 140. CW2 confirms that S1 merely requested that he fill out a
statement regarding the incident, but gave complainant a direct order.
ROI at 140. S1 stated to the investigator that he did not give an
order to anyone. ROI at 8. In the counselor’s report, however, S1
claims that both employees were given an order. ROI at 17. Given S1’s
contradictory testimony and CW2’s confirmation of complainant’s version,
we find that the incident occurred as complainant alleges. We also
find that S1’s behavior was racially motivated, noting S1’s disparate
treatment of complainant as compared to the similarly situated white
employee, his prior disparate treatment of complainant in allegation (3),
his use of racial slurs, and his problems working with racial minorities.
As alleged in allegation (8), we find that on March 19, 2002 S1
intentionally offended complainant. Complainant states that on that day
he entered S1’s office to retrieve some blueprints. ROI at 6. S1 asked a
contractor who was present in the room to read aloud from S1’s report of
the incident on March 16, 2002. When the contractor refused, according
to complainant, S1 read aloud a section from his report containing the
terms “Negro,” “Black,” and “African-American.” ROI at 107. He looked at
complainant as he did it. ROI at 108. S1 claimed he has no recollection
of the event to the investigator. ROI at 122. Yet, he denies that
it occurred in the counselor’s report. ROI at 18. The contractor, to
whom S1 read the statement, denies the incident occurred. ROI at 179.
Although complainant was the only witness able to testify to the incidents
in this allegation and the two other people present deny it occurred,
we find that a preponderance of the evidence indicates complainant’s
version is true. The agency presents no reason, nor does the record
contain reason, to doubt complainant’s credibility. S1’s denial is
equivocal, given his inconsistent statements, first that the incident
never happened to the counselor, and later to the investigator that he
had no recollection of it. We also note that he felt the need to justify
his answer in both instances by arguing that he had no reason to read the
incident report to the contractor. The tone of S1’s answers coupled with
the injuries to his credibility detailed above, make his denial of this
incident uncredible. The contractor’s denial is similarly unpersuasive.
He appears defensive in that he states that his answer to the investigator
was same as his answer previously given in a different interview. Thus,
we find complainant’s testimony more compelling.
The record reveals, regarding allegation (12), that on May 10, 2002
S1 again attempted to intimidate complainant because of his race.
Complainant stated that while conducting a shop meeting, the first
thing S1 said was, ‘If you think you’ve got an EEO case, come to
(sic) talk to me first.’ ROI at 110. CW1 confirms that S1 made
the statement, although he remembers S1 standing next to complainant
rather than behind him. ROI at 151. CW1 also notes that he e-mailed
S1 the day before this meeting to inform S1 that he recommended that
complainant seek EEO counseling. ROI at 151, 154. S1 claimed that
he merely stated that if there was an EEO problem, he would like the
opportunity to discuss it. ROI at 124. From his perspective, he did
not imply that they had to come to him first. Id. He claims not to have
known of complainant’s intention to file an EEO complaint at that time.
He also stated that his position in relation to complainant was as it
normally was at all their meetings. Id. A white coworker present at
the meeting (CW4) believed that S1 only stated that if an employee had
non-work business, like an EEO, to let S1 know so that he could account
for the time away from work. ROI at 158-59. CW4 does not believe it was
discouraging or intimidating. Id. He concurred that S1’s position in
relation to complainant was as it normally was at staff meetings. Id.
We find that the incident occurred as complainant describes given that
both he and CW1 agree on the substance and meaning of S1’s statement.
We note that S1’s and CW4’s versions differ markedly from each other.
We also find that S1’s credibility is damaged by his denial of knowledge
of complainant’s intention to seek EEO counseling. CW1’s e-mail informed
S1 that an employee who had sought union representation, as complainant
had done on several occasions since March 2002, had been advised to seek
EEO counseling. The e-mail also detailed several instances of alleged
racial harassment by S1. S1’s testimony, therefore, appears less than
forthcoming.
For the remainder of complainant’s allegations, we find that a
preponderance of the evidence indicates that the incidents were not
racially motivated. They did not, therefore, contribute to a hostile
work environment based on complainant’s race.
Thus, in summary, we find that complainant’s supervisor generally treated
minority employees differently, used the slur “n_gger” more than once in
complainant’s presence, verbally attacked complainant but did not do so to
a similarly situated white employee, gave complainant an order that he did
not give a similarly situated white employee, sought to offend complainant
based on his race, and sought to interfere with the EEO process.
B. Conclusions of Law
We find, first, that complainant was subjected to unlawful harassment
based on his race. Harassment of an employee that would not occur but
for the employee’s race, color, sex, national origin, age, disability,
or religion is unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139
(D.C. Cir. 1985). To prove a case of harassment, complainant must show
that: (1) he is a member of a statutorily protected class and/or was
engaged in prior EEO activity; (2) he was subjected to unwelcome verbal or
physical conduct related to his membership in that class and/or his prior
EEO activity; (3) the harassment complained of was based on his membership
in that class and/or his prior EEO activity; (4) the harassment had the
purpose or effect of unreasonably interfering with his work performance
and/or creating an intimidating, hostile, or offensive work environment;
and (5) there is a basis for imputing liability to the employer.
See Roberts v. Department of Transportation, EEOC Appeal No. 01970727
(Sept. 15, 2000) (citing Henson v. City of Dundee, 682 F.2d 897 (11th
Cir. 1982)). Harassment is actionable only if the incidents to which
complainant has been subjected were “sufficiently severe or pervasive to
alter the conditions of [complainant’s] employment and create an abusive
working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75
(1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997).
As detailed above, we find that complainant was subjected to unwelcome
verbal conduct related to and because of his race. Furthermore, we find
that the incidents found to have occurred above, taken as a whole,
were sufficiently severe and pervasive to make the agency a hostile
working environment for complainant.
Even a limited number of offensive slurs or comments made about an
individual’s race or national origin can be sufficiently severe and
pervasive to constitute harassment under Title VII. See McAllister
v. Department of Defense, EEOC Request No. 05960416 (May 22, 1997);
see also Yabuki v. Department of the Army, EEOC Request No. 05920778
(June 4, 1993); see also Brooks v. Department of the Navy, EEOC Request
No. 05950484 (June 26, 1996). In McAllister v. Department of Defense,
complainant’s supervisor told him, “Until you are my boss, black boy, you
cannot tell me what to do.” See McAllister, supra; see also McAllister
v. Department of Defense, EEOC Appeal No. 01945248 (March 1, 1996).
In Yabuki v. Department of the Army, complainant’s supervisor stood
at the water cooler remarking that soon the Japanese people would
own the country. See Yabuki, supra. After noticing complainant, the
supervisor pointed his finger in his face and declared that “it was
because of [complainant].” Id. In Brooks v. Department of the Navy,
complainant’s supervisor told complainant “that damn Skip, he reminds
me of people of your color.” See Brooks, supra. Shortly thereafter
he called complainant a “n_gger.” Id. Finally, two months later he
pointed to a dead black rat in a trash can and said, “That’s one of
your relatives.” Id. In all of these cases, we found that only a
few derogatory racial slurs were sufficiently severe and pervasive to
constitute a hostile work environment for the complainant. We also noted
in these decisions that the offending supervisor or the agency facility
had a history of harassing conduct based on race or national origin.
As in the cases above, we find here that because complainant’s supervisor
used derogatory racial slurs, treated complainant abusively, treated
complainant differently because of his race, purposefully offended
complaint because of his race, and had a history of treating racial
minorities differently, complainant was subjected to a hostile work
environment. The incidents occurring here were greater in number and
together even more egregious than the cases cited above. Complainant was
illegally harassed because of his race.
Next, we find that there is basis for holding the agency vicariously
liable for S1’s harassment of complainant based on race. Enforcement
Guidance: Vicarious Liability for Unlawful Harassment by Supervisors,
EEOC Notice No. 915.002 (June 18, 1999) (“Vicarious Liability Guidance”),
at 4 (citing Burlington Industries, Inc., v. Ellerth, 524 U.S. 742 , 118
S.Ct. 2257, 2270 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775,
118 S.Ct. 2275, 2292-93 (1998)). “An employer is subject to vicarious
liability for unlawful harassment if the harassment was committed by
‘a supervisor with immediate (or successively higher) authority over
the employee.’” Vicarious Liability Guidance at 4. An individual who
is authorized to direct another employee’s day-to-day work activities
qualifies as his or her supervisor. Vicarious Liability Guidance at 6
(citing Faragher, 118 S. Ct. at 2280). The record reveals that S1 had
supervisory power over complainant in that he controlled complainant’s
day-to-day work activities. Id. Liability for S1’s actions is,
therefore, imputed to the agency. Id.
Finally, we find that the agency failed to avoid liability by proving
the affirmative defense which is available because the harassment
did not result in tangible employment action. Burlington Industries,
Inc. v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton,
524 U.S. 775 (1998). In a case where harassment does not result in a
tangible employment action, the employer may prove an affirmative defense
comprised of two elements: (1) that the employer exercised reasonable
care to prevent and correct promptly any harassing behavior, and (2)
that the plaintiff employee unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the employer or to
avoid harm otherwise. Ellerth, supra; Faragher, supra. The record
reveals that CW1 informed S1’s supervisor of S1’s use of the word
“n_gger” in January of 2002, that CW1 also informed S1 of complainant’s
grievances in writing on May 9, 2002, and that complainant sought union
representation on several occasions following the harassing incidents.
The agency does not argue on appeal that it exercised reasonable care to
correct the harassing behavior. Nor does the record contain evidence that
the agency took or attempted to take any corrective action. There is no
indication that the agency disciplined S1 or attempted to facilitate a
conciliation between S1 and complainant. Nor is there indication that
the agency took action to remove the problem, such as transferring S1
or complainant to a different work team. The agency is thus liable for
the harassment.
We also find that complainant suffered unlawful retaliation for his
EEO activity when S1 attempted to interfere with complainant’s EEO
activity.<1> See Binsel, supra; see also Marr, supra. Unlawful
retaliation for EEO activity can occur whenever the employer acts in
response to protected EEO activity in such a way that is reasonably likely
to deter protected activity in the future. EEOC Compliance Manual,
Section 8: Retaliation, No. 915.003 (Compliance Manual) (May 20, 1998),
at 8-13 to 8-14. Even if complainant successfully initiates the EEO
process in spite of the interference, complainant is still aggrieved.
See Marr, supra; see also Boyd v. Department of Transportation, EEOC
Appeal No. 01955276 (October 10, 1997); see also Johnson v. Department
of the Army, EEOC Request No. 05921027 (March 18, 1993). S1 instructed
his employees to discuss EEO problems with him before initiating the
formal EEO process. We find that instructing employees in a staff
meeting to discuss EEO problems with him was reasonably likely to deter
future protected activity. S1, therefore, unlawfully retaliated against
complainant by interfering with his EEO activity.
IV. CONCLUSION
Therefore, after a careful review of the record, we reverse the agency’s
final decision and remand this case to the agency to take remedial
actions in accordance with this decision and Order below.
ORDER (C0900)
The agency is ordered to take the following remedial action:
The agency shall provide training to the official responsible for
unlawfully harassing complainant and retaliating against complainant by
interfering with the EEO process concerning his responsibilities with
respect to eliminating discrimination in the federal workplace. The
training must place a special emphasis on the agency’s obligations under
the aforementioned law and implementing regulations with respect to
harassment based on race and not interfering with the EEO process. The
Commission does not consider training to be a disciplinary action.
The agency shall consider taking disciplinary action against the
responsible official. The agency shall report its decision within thirty
(30) calendar days. 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.
Post the attached notice, as detailed below.
The agency shall undertake a supplemental investigation to determine
complainant’s entitlement to compensatory damages under Title VII.
The agency shall give complainant notice of her right to submit objective
evidence (pursuant to the guidance given in Carle v. Department of the
Navy, EEOC Appeal No. 01922369 (January 5, 1993)) and request objective
evidence from complainant in support of her request for compensatory
damages within forty-five (45) calendar days of the date complainant
receives the agency’s notice. No later than ninety (90) calendar days
after the date that this decision becomes final, the agency shall issue
a final agency decision addressing the issue of compensatory damages.
The final decision shall contain appeal rights to the Commission.
The agency shall submit a copy of the final decision to the Compliance
Officer at the address 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 verifying
that the corrective action listed in this order has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Naval Air Depot, Jacksonville
Detachment in Norfolk, VA 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
____3/31/05______________
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 Assistant
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated _____________ which found that
a violation of Title VII of the Civil Rights Act of 1964 (Title II),
as amended, 42 U.S.C. § 2000e et seq. has occurred at this facility,
the Department of the Navy’s Naval Air Depot, Jacksonville Detachment,
in Norfolk, VA. .
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. This facility supports and will comply with such Federal law
and will not take action against individuals because they have exercised
their rights under law.
The facility was found to have unlawfully discriminated against an
employee by harassing him because of his race and retaliating against him
by interfering with his attempt to initiate the EEO process. The agency
shall therefore remedy the discrimination by paying providing training
for the responsible management official, considering disciplining
the responsible management official, paying compensatory damages
if applicable, paying the employee’s attorney’s fees, and posting
this notice. The facility will ensure that officials responsible for
personnel decisions and terms and conditions of employment will abide
by the requirements of all federal equal employment opportunity laws.
_____________________
Date Posted: ___________
Posting Expires: _______
1We note that although complainant did not allege unlawful retaliation
in his complaint he did allege the facts that support the finding.
The agency was therefore on notice of the issue and is not unduly
prejudiced by our finding.
