Within grade increase denied

John G. Apodaca v. Department of Veterans Affairs

01990542

05-24-02

John G. Apodaca,

Complainant,

v.

Anthony J. Principi,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal  No. 01990542

Agency No. 96-0768

Hearing No. 320-96-8354X

DECISION

INTRODUCTION

John G. Apodaca (hereinafter referred to as complainant) filed a timely

appeal from the October 7, 1998, final decision of the Department of

Veterans Affairs (hereinafter referred to as the agency) concerning a

complaint of unlawful employment discrimination in violation of Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.,

and the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c).

The appeal is timely filed (see 29 C.F.R. § 1614.402(a)) and is accepted

in accordance with 29 C.F.R. § 1614.405.

ISSUE PRESENTED

The issue presented in this appeal is whether complainant has proven,

by a preponderance of the evidence, that the agency discriminated against

him on the bases of disability (stress), sex, religion,<1> and reprisal

(Title VII) when (a) he received a special performance appraisal in July

1994; and (b) when he was admonished, reassigned, and allegedly harassed

in August 1995.

BACKGROUND

Complainant contacted an EEO counselor on August 25, 1995, and filed his

formal complaint on December 4, 1995.  The complainant claimed that he

was discriminated against based on disability (stress), sex, religion,

and reprisal (Title VII) when (1) he received a unfavorable special

performance appraisal in July 1994, and (2) he was admonished, reassigned,

and allegedly harassed in August 1995.  Following an investigation,

he requested a hearing before an EEOC Administrative Judge (AJ).

The AJ conducted a hearing and issued his decision on June 22, 1998,

finding discrimination based on disability and reprisal with regard to

claim 1 and no discrimination on all other bases and issues.  In its

final agency decision (FAD), the agency accepted the AJ’s finding of

discrimination based on reprisal with regard to claim 1 and found no

discrimination as to all other claims.  Complainant filed the instant

appeal, without substantive comment.

At the time of the events herein, complainant was a supervisor in

Acquisition and Material Management Service (AMMS), Ft. Lyon, Colorado,

Medical Center.  In late 1992, a new Chief, AMMS (S1), was appointed,

who made several changes.  First, he selected an employee (E1) under

complainant’s supervision as his deputy, bypassing complainant.<2>

Also, S1 removed many of the supervisory duties from the supervisors

and reassigned them to E1.  Complainant cited these and other events<3>

as background to the issues in his complaint, contending that a “witch

hunt was being conducted” against him by S1 and E1 and that he was being

“harassed,” when, e.g., S1 criticized his decisions, his failure to

timely process purchase orders, and his mistake in routing an invoice

to the wrong office.  (Complaint, p. 3).

July 1994 Special Performance Appraisal

With regard to (a), because the agency’s final decision found reprisal

discrimination, we briefly state the facts for purposes of review of

the remedy.  On about July 11, 1994, complainant received a special

performance appraisal for the three-month period from April 1 to July

7, 1994, accompanied by a memorandum denying his within-grade increase

(WGI) due on August 21, 1994.<4>  The appraisal found his performance

“unacceptable” and stated that his level of performance for four of five

elements was less than fully successful.  In particular, S1 criticized

complainant’s failure to meet the timeliness and accuracy requirements of

his performance standards.  The record shows that complainant was absent

61.5% of the rating period and that he was absent for most of July and

August, returning to a regular work schedule in early September 1994.

He received his WGI on November 23, 1994.

August 1995 Admonishment and Reassignment

In early 1995, complainant was assigned to the Engineering Service

as its principal contractor under the supervision of the Chief of the

Engineering Service (S2).  Sometime prior to August 1995, complainant

awarded two contracts that were found to violate the Anti-Deficiency

Act, which prohibits agencies from issuing contracts exceeding the

amount of funds available.  See 31 USC § 1341.  The agency issued

complainant an admonishment dated August 25, 1995, and he was reassigned

to AMMS effective August 28, 1995.<5>  In addition, complainant  was

given a performance appraisal for the six-month period from April 1 to

September 11, 1995, rating him “unacceptable,” in that, his performance

for the critical element of Contract Administration was less than

fully successful.   His contracting authority and other duties were

temporarily removed, and he was placed on a Performance Improvement Plan

(PIP) for 60 days under the supervision of S1.

August 1995 Harassment

Complainant stated that on August 14, 1995, he was interrupted during a

meeting to take a telephone call informing him that he had violated the

Anti-Deficiency Act.  We note, in addition, that there are references

in the record to complainant’s feelings of harassment in early 1993

upon S1’s selection of E1, S1’s reorganization, and some of the events

described, above.  In addition, complainant testified that S1 and E1

harassed him and were on a “witch hunt,” went through his desk and files,

and questioned his subordinates and co-workers.  (Hearing Transcript

4/15/98 (HT1) 39).  In addition, in his investigative deposition (ID),

complainant stated that he was “being ignored or shoved into a corner,”

believed people were talking about him, and referred to S1’s criticisms

(ID 9-10); that he and E1 did not speak to each other (ID 11); that he

was blamed for E1’s errors (ID 12); that S1 encouraged him to apply for

a position in Albuquerque (ID 16);  and that S1 was “after me” (ID 17).

Complainant also asserted that S1 was hostile towards him after he was

named as a witness in the EEO matters of two agency employees.

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by

an AJ will be upheld if supported by substantial evidence in the record.

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).

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).

For purposes of this analysis, we will assume without finding that

complainant is an individual with a disability, and even assuming

that complainant established a prima facie case on disability, sex,

religion, and reprisal, applying the McDonnell Douglas analysis, we

find that complainant did not demonstrate that the agency’s reasons

for its actions were based on prohibited considerations of disability,

sex or religion.<6>  As to the August 1995 events, the AJ found that

the agency articulated legitimate, nondiscriminatory reasons for its

actions in response to which  complainant did not demonstrate pretext.

Our review of the record supports this conclusion.

Claim of Harassment

Complainant also claimed that he was subjected to harassment.  The

harassment of an employee based on his/her race, color, sex, national

origin, age, disability, or religion is unlawful, if it is sufficiently

patterned or pervasive.  McKinney v. Dole, 765 F.2d 1129, 1138-1139

(D.C. Cir. 1985).  To prevail on a harassment claim, a complainant must

show that s/he was subjected to harassment because of discriminatory

factors, i.e., sex, religion, reprisal, or disability.  In assessing

allegations of harassment, the Commission examines factors such as the

frequency of the alleged discriminatory conduct, its severity, whether

it is physically threatening or humiliating, and if it unreasonably

interferes with an employee’s work performance.  Harris v.  Forklift

Systems, Inc., 510 U.S 17 (1993).  Usually, unless the conduct is severe,

a single incident or group of isolated incidents will not be regarded as

discriminatory harassment.  Walker v. Ford Motor Co., 684  F.2d 1355,

1358 (11th Cir. 1982).  See Bloomer v. Department of Transportation,

EEOC Petition No. 03980137 (October 8, 1999).

To support his claim of harassment, complainant generally described

actions by S1 and E1, and, specifically, he referred to an event in

August 1995 when he was interrupted during a meeting.  We find that

complainant’s claims do not describe illegal harassment but instead are

legitimate criticisms of complainant’s work product within the agency’s

legitimate business operations.  After a thorough review of the record,

we find that the agency did not discriminate against complainant with

regard to the 1995 events.

Remedy

In relief, the AJ awarded complainant compensatory damages, in

that, complainant had “some emotional distress and harm,” that his

“assertions of proximate cause…are uncontroverted in the record,”

and that he is entitled to recover provable pecuniary and non-pecuniary

compensatory damages. (Decision 32-33).  The AJ held that while the

agency was not liable for complainant’s preexisting condition, it was

responsible for the exacerbation thereof, and found that “a reasonable

amount to compensate complainant for the harm suffered is $15,000.”

(Decision 35).  In addition, the AJ directed the agency to refrain from

further discriminatory or retaliatory actions; that it pay reasonable

attorney’s fees; that it take action to eliminate the effects of the

July 1994 appraisal; and that it post a nondiscrimination notice.

In its decision, the agency ordered that its files be purged of any

reference to the July 1994 appraisal; to make complainant whole for

the denial of his WGI in 1994; to restore sick and annual leave taken

as a result of the 1994 appraisal; to commit to complainant that it

will cease any reprisal activity; to pay reasonable attorney’s fees; to

consider disciplinary action against S1 and consider giving him training;

and to post a notice of nondiscrimination.  With regard to compensatory

damages, the agency found that the record lacked evidence to support an

award of pecuniary or non-pecuniary damages, and it directed complainant

to submit a claim within 60 days.

As set out in more detail below, we find that complainant is entitled to

back pay for the denial of his within grade increase in July 1994, removal

from agency files of all documents with reference to the July 1994 Special

Performance Appraisal, restoration of sick and annual leave from April

through September 1994, and attorney’s fees.  In addition, the agency

is directed to post a non-discrimination notice.  Although complainant

sought, inter alia, pecuniary and nonpecuniary compensatory damages, and

the AJ awarded him both pecuniary and nonpecuniary compensatory damages,

we find that the record does not support the amount of compensatory

damages granted by the AJ.

Compensatory Damages

Section 102(a) of the Civil Rights Act of 1991 (CRA) authorized awards

of compensatory damages as relief for intentional discrimination in

violation of Title VII and the Rehabilitation Act.  42 U.S.C. §1981a.

See generally Enforcement Guidance:  Compensatory and Punitive Damages

Available under § 102 of the Civil Rights Act of 1991, No. N 915-002

(July 14, 1992) (Guidance). Compensatory damages are recoverable

in the administrative process, including resolutions by settlement.

West v. Gibson, 527 U.S. 212 (1999).  Compensatory damages are awarded

for losses and suffering due to the discriminatory acts or conduct of

the agency and include past pecuniary losses, future pecuniary losses,

and nonpecuniary losses that are directly or proximately caused by the

agency’s conduct.<7>  Guidance at 8.

It is a complainant’s burden to demonstrate, through appropriate evidence

and documentation, the harm suffered as a result of the agency’s actions;

the extent, nature, and severity of the harm suffered; and the duration

or expected duration of the harm.  Rivera v. Department of the Navy,

EEOC Appeal No. 01934156 (July 22, 1994), req. to recon. den., EEOC

Request No. 05940927 (December 11, 1995); Guidance at 11-12, 14; see

also, Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652

(July 17, 1995).  The agency is only responsible for those damages that

are shown to be caused by the agency’s conduct.  Carle v. Department of

the Navy, EEOC Appeal No. 01922369 (January 5, 1993); Fazekas v. USPS,

EEOC Appeal No. 01954627 (April 7, 1997); see also Johnson v. Department

of Interior, EEOC Appeal No. 01961812 (June 18, 1998).  To recover

damages, the complainant must prove that the agency’s actions were the

cause of the loss.  Guidance at 8.  Objective evidence in support of a

claim for pecuniary damages includes documentation showing all actual,

out-of-pocket expenses with an explanation of the expenditure and,

for nonpecuniary claims, statements from the complainant and others,

including family members, co-workers, and medical professionals.

Guidance at 9; Carle v. Department of the Navy, supra.

In the matter before us, the AJ found that complainant established

harm and causation and awarded him $15,000 in nonpecuniary damages.

The AJ’s finding, however, was based solely on complainant’s testimony,

there being no documentation in the file addressing entitlement

to compensatory damages.  In our review of the record, there is no

showing of any past pecuniary losses, and complainant cannot recover

such damages.  With regard to the AJ’s justification for an award of

nonpecuniary damages, we find that complainant’s testimony was very

general and contained little specification as to the harm caused by or

exacerbated by the July 1994 performance appraisal.<8>    Here, because

we find that complainant’s testimony regarding his mental and emotional

state in relation to the July 1994 appraisal was limited, we find that

a reduction in the amount awarded by the AJ is necessary.  For these

reasons, we award complainant $5,000 in nonpecuniary compensatory damages.

CONCLUSION

Accordingly, the agency’s decision is AFFIRMED, as modified.  The agency

is directed to comply with the Order, below.

ORDER

To the extent it has not already done so, the agency is ordered to take

the following remedial actions:

(A) With regard to the denial of complainant’s within grade increase

in July 1994, the agency shall 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.”

(B) Within 60 days of the date this decision becomes final, the agency

shall remove from  complainant’s official personnel file the July 1994

Special Performance Appraisal and all documents that reference it.

(C) Within 60 days of the date this decision becomes final, the agency

shall restore to complainant sick and annual leave from April through

September 1994 taken as a result of the July 1994 Special Appraisal.

(D) Within 60 days of the date this decision becomes final, the agency

shall pay complainant $5,000 in nonpecuniary compensatory damages.

(E) The agency shall consider taking disciplinary action against S1 with

regard to his discriminatory action of the July 1994 Special Performance

Appraisal.  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.   The agency

shall also give S1 a minimum of 12 hours of EEO training, with special

emphasis on the duty not to retaliate against individuals who engage in

EEO activity.

(F) 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.

The agency shall provide a copy of this report, along with supporting

documentation, to complainant.

POSTING ORDER (G0900)<9>

The agency is ordered to post at the Ft. Lyon, Colorado, Medical Center

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 Hadden, Director

Office of Federal Operations

_05-24-02_________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing.  I certify that

the 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,

as amended, 42 U.S.C. § 2000e et seq., has occurred at this facility.

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 privilege of

employment.

The Department of Veterans Affairs, Ft. Lyon Medical Center, supports

and will comply with such Federal law and will not take action against

individuals because they have exercised their rights under the law.

It has remedied the employee affected by the Commission’s finding of

reprisal discrimination by ordering the agency to purge its files of

offending documents, to provide back pay, to restore sick and annual

leave, to pay nonpecuniary compensatory damages, and to pay reasonable

attorney’s fees.  The Department of Veterans Affairs, Ft. Lyon Medical

Center, will ensure that officials responsible for personnel decisions

and terms and conditions of employment will abide by the requirements

of all federal equal employment laws and will not subject employees to

reprisal discrimination.

The Department of Veterans Affairs, Ft. Lyon Medical Center, 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 participated in proceedings pursuant to, Federal

equal employment opportunity law.

Date Posted:

Posting Expires:

1This basis was added at the hearing.

2At the time, complainant contacted an EEO counselor regarding the

selection, but he did not proceed with a formal complaint.  S1 was

notified of the EEO contact.

3Complainant also described events in early 1992 when AMMS staff employees

contacted an EEO counselor and filed an EEO complaint against him.

In response to the complaint, the Medical Center Director required

that all staff meet to address issues raised by the EEO complaint.

These meetings went on for approximately six months, at which staff

aired their ongoing complaints against complainant.  Complainant also

stated that in March 1993, he was blamed for not incorporating some

required changes into a construction contract, and S1 removed some of

his supervisory duties, citing poor staff supervision and communication.

4The AJ stated that complainant received the special performance appraisal

on May 11, 1994.  This was in error; the document received on May 11

was his annual performance plan.

5The record indicates that disciplinary action was taken against S2,

as well.

6Generally, claims of disparate treatment are examined under the

tripartite analysis first enunciated in McDonnell Douglas Corporation

v. Green, 411 U.S. 792 (1973).  Hochstadt v. Worcester Foundation for

Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d,

545 F.2d 222 (1st Cir. 1976).  For complainant to prevail, s/he must

first establish a prima facie case of discrimination by presenting

facts that, if unexplained, reasonably give rise to an inference of

discrimination, i.e., that a prohibited consideration was a factor in the

adverse employment action.  McDonnell Douglas, 411 U.S. at 802; Furnco

Construction Corp. v. Waters, 438 U.S. 567 (1978).  Once complainant has

established a prima facie case, the burden then shifts to the agency

to articulate a legitimate, nondiscriminatory reason for its actions.

Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253

(1981).  If the agency is successful, the burden reverts back to the

complainant to demonstrate by a preponderance of the evidence that the

agency’s reason(s) for its action was a pretext for discrimination.

At all times, complainant retains the burden of persuasion, and it is

his/her obligation to show by a preponderance of the evidence that the

agency acted on the basis of a prohibited reason.  U.S. Postal Service

Board of Governors v. Aikens, 460 U.S. 711, 715-716 (1983).

7Punitive damages are not available from a federal employer.

8In general, a discriminating employer is liable for the exacerbation

of a complainant’s pre-existing conditions that are causally related to

the discriminatory act.  See Guidance at 11.

9This order only applies if the agency has not already posted a

nondiscrimination notice with regard to this case.

See also: Quality step increase