Rolando Cano,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 07A40081
Hearing No. 360-2003-08362X
Agency Nos. 02-2395, 03-2507
DECISION
The agency issued its March 24, 2004 final order, declining to implement
the decision of an EEOC Administrative Judge (AJ) finding that the agency
discriminated against complainant and filed the present appeal.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
a Supervisory Customs Inspector at the Hidalgo/Pharr Port of Entry in Parr,
Texas. On April 11, 2002, complainant contacted an EEO Counselor and on
September 1, 2002, he filed a formal EEO complaint (Agency Case No. 02-
2395), alleging that he was discriminated against and/or subjected to a
hostile work environment on the bases of national origin (Hispanic), sex
(male), and age (D.O.B. 03/23/56) when:
1. On March 19, 2002, complainant was issued a Letter of Reprimand;
2. On May 7, 2002, complainant was told to get his own supplies;
3. On September 16, 2002, a chief inspector yelled "you're stupid,"
during a conference call;
4. On March 6, 2000, complainant was issued a Letter of Caution;
5. In July 2000, complainant was not commended with the
Commissioner's Meritorious Valor Award;
6. In April 2001, complainant was not commended with the
Commissioner's Integrity Award; and
7. In July 2001, complainant was not commended with a
Commissioner's award.
On October 31, 2002, the agency accepted issues (1), (2), and (3) for
processing. In a second letter dated October 31, 2002, the agency
dismissed issues (4) - (7) for untimely EEO Counselor contact.[1]
Thereafter, complainant initiated EEO Counselor contact again and on May
21, 2003, he filed a second EEO complaint (Agency Case No. 03-2507)
alleging he was subjected to discrimination and continuing sexual
harassment on the bases of sex and retaliation when: on February 28, 2003,
Chief Customs Inspector 1 (Chief 1) commented "Pobre Cano ya creia que se
via conseguido a uno" or "Poor Cano thought he had gotten him a man."
On July 23, 2003, following one hundred and eighty days after the filing of
his first formal complaint, complainant requested a hearing before an EEOC
Administrative Judge (AJ) on Agency Case No. 02-2395.
The record reveals that on October 29, 2003, the agency filed its Agency's
Motion to Dismiss or for Summary Judgment. The agency argued that
complainant failed to establish a prima facie case of discrimination and/or
hostile work environment based on age, sex or national origin.
Specifically, the agency stated complainant failed to show that he suffered
an adverse employment action with regard to issues (2) and (3). Further,
the agency argued that complainant failed to establish that the issues
alleged rise to the level of a hostile work environment. With regard to
issue (1), the agency noted that it identified legitimate non-
discriminatory reasons for the Letter of Reprimand. The agency explained
that the Letter of Reprimand was issued for negligent performance of
duties. The agency noted that the cited disciplinary action was taken for
two reasons: (1) on July 14, 2001, complainant failed to follow proper
procedures after a drug seizure, and; (2) complainant failed to follow
proper personal search procedures. The agency stated that in issuing the
Letter of Reprimand it also took into account the fact that complainant had
been cautioned previously for inattention to duty as a supervisor. With
regard to issue (2), the agency stated that Chief Customs Inspector 2
stated she unlocked the supply room for another Supervisory Customs
Inspector to retrieve his own pens and did not hear complainant request
supplies. Finally, with regard to issue (3), the agency stated that Chief
Customs Inspector 3 stated that complainant's actions were stupid since he
had previously informed complainant how to handle a situation involving INS
officials, but complainant insisted upon doing it his own way. The agency
stated that complainant failed to demonstrate that its legitimate reasons
are discriminatory.
On December 4, 2003, the AJ issued an Amended Consolidation Order which
consolidated complainant's retaliation claim filed in Agency Case No. 03-
2507 with the accepted issues in Agency Case No. 02-2395.
The record reveals that on December 18, 2003, complainant withdrew issues
(2) and (3) from further processing.
On December 19, 2003, the agency filed a Stipulated Motion to Continue
Hearing, or in the Alternative, Motion to Limit Scope of Hearing. In its
Motion, the agency recognized that the AJ's December 4, 2003 Consolidation
Order consolidated Agency Case No. 03-2507 with Agency Case No. 02-2395 and
ordered the agency to accept the new retaliation claim and forward copies
of the case file to the AJ and complainant's representative by December 24,
2003. The agency noted that on December 18, 2003, it forwarded the case
file, existing at the time, to the AJ and complainant's representative.
The agency stated that it accepted the retaliation allegation for
investigation; however, it noted that the new complaint had not been fully
investigated. The agency stated once the investigation is complete, the
agency and complainant will require time to request amendments to the
witness lists and complete discovery on the new allegations. Thus, the
agency requested that the hearing scheduled for January 8, 2004, only focus
on the issue of the Letter of Reprimand.
On January 5, 2004, the AJ issued an Order Denying Continuance and Stating
Issue to be Decided. Specifically, the AJ noted that the reprisal issue
raised in Agency Case No. 03-2507 does not warrant formal discovery.
Further, the AJ stated that at the hearing he will decide the following
issues:
1. Was complainant discriminated against or subjected to a hostile
work environment based on age, sex or national origin when on March
19, 2002, he was issued a Letter of Reprimand for negligent
performance of duties.
2. Was complainant subjected to a continuing hostile work environment
or retaliated against for protected EEO activity when, allegedly, a
supervisor, in the presence of other supervisors and co-workers,
made the statement in Spanish, translated as "Poor Cano thought he
had gotten him a man."
The AJ held a hearing on January 8, 2004, and issued a decision on the case
on January 12, 2004. The AJ noted that in issue (1) complainant alleged he
was discriminated against or subjected to a hostile work environment on the
basis of age, sex or national origin, when on March 19, 2002, he was issued
a Letter of Reprimand for negligent performance of duties. Additionally,
the AJ stated that the evidence developed at the hearing indicated that
complainant is asserting a claim of same sex, male on male, discrimination.
The AJ reformulated issue (2) as follows: was complainant subjected to
continuing harassment or a hostile work environment on the bases of sex or
in retaliation for protected EEO activity when on a recurring basis,
supervisors and co-workers made statements, circulated rumors and posted
graffiti suggesting that complainant was a homosexual.
With regard to issue (1), the AJ found that the agency articulated
legitimate, non-discriminatory, non-retaliatory reasons for reprimanding
complainant for negligent performance of duties. The AJ noted that the
preponderant evidence establishes that complainant violated agency policies
or regulations as charged in the Letter of Reprimand and that a permissible
penalty was imposed for the infraction. The AJ noted that the testimony
reflected that complainant failed to follow proper procedures in a pat down
search and failed to promptly notify his superiors of a significant
marijuana seizure. The AJ found complainant failed to present evidence in
support of his claim of pretext.
With regard to issue (2), the AJ noted that complainant belonged to a
statutorily protected category in that he is male. The AJ also found that
complainant was subjected to unwelcome comments, rumors and graffiti
suggesting he was homosexual. The AJ found the harassment to which he was
subjected was based on his sex. The AJ stated that the harassment had the
effect of unreasonably interfering with his work performance and created an
intimidating, hostile and offensive work environment. Finally, the AJ
found there is a basis for imputing liability to the agency. The AJ found
insufficient evidence to establish that the harassment was the result of
protected EEO activity.
In his discussion of complainant's claim of harassment based on sex, the AJ
found the homosexual commentary, rumor mongering, and graffiti was
directed, almost exclusively, at complainant. The AJ noted that the
offensive conduct was neither isolated nor sporadic but rather frequent and
recurring. The AJ noted that while some of the conduct was good-natured
teasing, over time the offensive conduct progressed to a sufficiently
severe and pervasive level such that it disrupted complainant's work
environment. The AJ found the conduct particularly aggravating given the
fact that complainant was a veteran supervisor, whose authority was being
undermined by the offensive conduct engaged in by employees he was required
to supervise, or other supervisors and employees on whom he had to depend
to effectively perform his job.
Additionally, the AJ characterized the agency's response to complainant's
request for assistance in ending the harassment "timid." Specifically, the
AJ noted that in response to complainant's complaint that co-worker A,
Supervisory Customs Inspector, was taking the joking and horseplay to an
extreme level, Chief 1 testified he initially believed there was a falling
out between friends and, essentially did nothing. The AJ noted that when
complainant complained again about the co-worker's excessive joking, Chief
1 stated he told the co-worker to stop. The AJ noted that Chief 1 did not
follow up to insure the joking had ceased or investigate whether co-worker
A was the source of the graffiti posting.
With regard to the graffiti posted, the AJ noted that Chief 1's response
was to personally remove it and to tell the custodial staff to remove any
future graffiti. The AJ stated that following complainant's complaint
about the graffiti, the Port Director sent out a "bland" electronic mail
message addressed to various employees advising them that the posting of
cartoons and caricatures of agency personnel in the workplace was not
permitted and could be considered a "hostile work environment." The AJ
noted that in the electronic mail message, the Port Director directed
supervisors to remove such material. Further, the AJ noted that Chief 1
testified that graffiti posting has continued, although he could not
recollect as to whether any recent postings concerned complainant.
The AJ concluded management did not make a sufficient impression on its
employees that this conduct will not be tolerated. The AJ also noted that
Chief 1 admitted he had laughed at disparaging jokes about a certain female
employee who was overweight, as well as a supervisor who had a flat nose
and dark skin color. The AJ noted that although the joke teller on these
occasions was complainant, nevertheless, Chief 1 by failing to immediately
and decisively condemn this offensive conduct, conveyed the impression that
it was acceptable behavior. The AJ noted that Chief 1 further admitted
that his "Operation Viagra," electronic mail message could be construed as
sexual innuendo. The AJ noted that Chief 1's "Poor Cano" comment also had
sexual connotation, whether intended or not.
The AJ also recognized that when the Port Director instructed Chief 1 to
contact the agency's Inspector General (IG) to report the offensive
graffiti directed at complainant, and was told there was nothing the IG
could do until it had the name of the culprit, Chief 1 did absolutely
nothing to ascertain which employees were engaging in the harassment of
complainant.
Thus, the AJ concluded the agency had knowledge of the sexual harassment
being directed against complainant, and, did not take prompt and effective
action to end it. Thus, the AJ found the agency liable for the actions and
inactions of its supervisors and employees involved in this matter.
As relief for the complaint, the AJ found complainant entitled to
compensatory damages. The AJ noted that complainant presented meager
evidence in support of his claim for compensatory damages. The AJ
determined that the sexual harassment to which complainant was subjected
caused him unwarranted mental anguish and distress. The AJ noted that
complainant testified that he sought medical treatment and was prescribed
antidepressant medication; however, he stated the evidence is unclear as to
the time when complainant underwent treatment and the severity of his
malady. The AJ noted that complainant testified that the harassment he
received at work negatively impacted his home life, especially his
relationship with his wife and children. The AJ noted that complainant
also made unsubstantiated assertions that his reputation in the community
had been injured by the rumors that he was homosexual. Finally, the AJ
recognized that complainant has an EEO complaint currently pending
involving an involuntary reassignment of complainant to a non-supervisory
assignment which occurred six months ago. The AJ noted that "a large
measure of the emotional stress or depression currently being experienced
by complainant stems from this latter complaint." Based on the evidence
presented, the AJ awarded $5,000.00 in compensatory damages for the mental
stress and anguish complainant suffered as a result of the sexual
harassment. Additionally, the AJ found that complainant was entitled to
reasonable attorney's fees as a result of his prevailing party status.
Subsequently, the AJ issued a Supplemental Decision Concerning Attorney's
Fees. In this decision, the AJ found complainant's attorney's reasonable
hourly billing rate of $150.00 reasonable. The AJ awarded complainant
$5,000.00 in attorney's fees and $242.74 in costs, for a total award in the
amount of $5,242.74.
The agency subsequently issued a final order on March 24, 2004, accepting
the AJ's finding that complainant was not discriminated against when he was
issued a Letter of Reprimand and that complainant did not present
sufficient evidence to establish that he was subjected to harassment in
retaliation for participating in prior protected EEO activities. However,
the agency rejected the AJ's finding that complainant was subjected to same-
sex sexual harassment and a hostile work environment because of his sex.
The agency claimed that all evidence indicated that the comments made to
complainant centered on sexual preference. The agency noted that sexual
orientation harassment is not protected under Title VII. Additionally, the
agency argued that the vast majority of incidents cited by complainant
should not have been allowed into evidence because they were not mentioned
in previous informal counseling sessions or in a formal complaint.
Additionally, the agency disagreed with the attorney's fees awarded by the
AJ. The agency stated that the parties stipulated to attorney's fees in
the amount of $2,243.74, but the AJ disregarded the parties' stipulation
and awarded attorney's fees in the amount of $5,242.74. Finally, the
agency stated that the AJ awarded complainant $5,000.00 in compensatory
damages despite the fact that he was unable to prove any medical or
psychological harm and all the testimony regarding mental pain and
suffering was unsubstantiated and came from complainant.
In its appeal, the agency argues that the AJ abused his discretion and
denied the agency its due process rights when he admitted testimony
concerning accounts of alleged sexual harassment. The agency claims that
in his original September 4, 2002 complaint, complainant identified the
issues he was raising to include failure to win awards, leave request
procedures, a letter of caution, a letter of reprimand, issuance of office
supplies, a poor choice of temporary duty location, and "overall
harassment." The agency claims that "overall harassment" was meant to sum
up the issues previously mentioned. The agency states that sexual
harassment was not mentioned in the original complaint and was not
discussed in informal counseling. The agency notes that complainant first
discussed sexual harassment in his January 28, 2003 affidavit, four months
after filing the formal complaint. The agency states that since
complainant never sought to amend the formal complaint to include those
instances of alleged sexual harassment, such instances should not have been
included in the hearing.
Alternatively, the agency argues even if the issues raised in the
investigative file were properly included in the EEO process, there was no
legal ground to include all the additional incidents of alleged sexual
harassment discussed by complainant at the hearing. The agency argues that
by allowing complainant to discuss every incident between April 2001 and
the present that he felt amounted to sexual harassment, complainant was
permitted to bypass the EEO process without ever having to seek informal
counseling on any of the other issues.
The agency also argues that the finding that complainant was harassed
"because of" his sex is not supported by substantial evidence. The agency
claimed that all evidence and testimony regarding sexual harassment
centered on homosexuality and complainant's perceived sexual orientation,
which the agency noted is not actionable under Title VII.
Additionally, the agency argues that the finding that complainant was the
subject of sexual harassment/hostile work environment is not supported by
substantial evidence. The agency argues that if the AJ had properly
excluded all allegations of sexual harassment other than the comment that
spawned the reprisal claim in Agency Case No. 03-2507, the one comment
would not have risen to the level to constitute sexual harassment.
Alternatively, the agency states that if the AJ properly considered
evidence regarding the allegations of sexual harassment that were
incorporated in the investigative file and Agency Case No. 03-2507, the
claim does not rise to the level of sexual harassment. The agency also
argues that if the AJ had included only the allegations of sexual
harassment mentioned in the hearing, but not in the investigative file or
previous complaint, the claim did not rise to the level to constitute
sexual harassment. Finally, the agency states if the AJ properly included
all the allegations of sexual harassment, the incidents described do not
rise to the level of severe and pervasive conduct to constitute harassment.
Alternatively, the agency argues that even if the sexual harassment is
proven by a preponderance of the evidence, complainant did not prove that
the imputation of liability is warranted. The agency states that the first
indication that complainant was offended by the comments or jokes was in
September 2001, when he told his supervisor, Chief 1, that the jokes by co-
worker A were getting out of hand. The agency stated that at that point,
the agency was under the impression that the jokes were originating from
one person, co-worker A. The agency states that based on the circumstances
of mutual joking and the friendship between complainant and co-worker A,
Chief 1 told complainant that it seemed to be done "in a joking manner" and
took no action. The agency notes that when complainant contacted Chief 1
again in October 2001, to complain about the jokes from the same person,
Chief 1 spoke with co-worker A and told him to stop the jokes. The agency
stated that complainant never returned to Chief 1 or another management
official to complain that co-worker A was sexually harassing him. The
agency notes that three months passed before complainant returned to Chief
1 to complain that there was graffiti in the bathroom that made sexual
references about complainant. The agency notes that Chief 1 and co-worker
A's supervisor cleaned the graffiti from the bathroom wall and Chief 1
informed the cleaning crew to erase any graffiti they saw. The agency
notes that Chief 1 testified that he personally checked almost daily to see
if there was any graffiti about anyone, and if there was graffiti, he
erased it. The agency states that complainant never returned to complain
about more jokes from co-worker A after October 2001. The agency also
states that there was no testimony that complainant was the subject of
graffiti after January 2002, when Chief 1 told the cleaning staff to
eliminate all graffiti.
The agency claims the AJ abused his discretion by denying a stipulated
motion to continue the hearing. The agency states that by denying the
stipulated motion to continue the hearing, and by expanding the scope of
the testimony to be considered at the hearing, the AJ denied the agency an
opportunity to adequately prepare for testimony regarding the incidents of
alleged sexual harassment raised by complainant at the hearing.
The agency also claims the AJ abused his discretion by disregarding the
parties' stipulation on attorney's fees and awarding more than double the
stipulated amount. The agency noted that in the AJ's written January 12,
2004 decision, he stated that the parties could stipulate to reasonable
attorney's fees and costs, and that he would incorporate such stipulation
into the supplemental attorney's fees award. The agency notes that on
January 28, 2004, complainant's attorney filed a verification of fees and
costs with the AJ. The agency notes that attached to the verification of
fees and costs was a cover letter addressed to the AJ stating that the
agency and complainant's attorney had reached a agreement that $2,000.00
was appropriate for attorney's fees. The agency states that on February 9,
2004, within the fifteen-day time period specified in the AJ's January 14,
2004 Order, it filed a written response to the verified statement of
attorney's fees and costs and stipulated to payment of $2,243.74 as
reasonable, upon exhaustion of all appellate processes. The agency noted
that notwithstanding the parties' stipulation to $2,243.74 as reasonable
attorney's fees and costs, the AJ disregarded the stipulation and his
previous orders by awarding $5,242.74 for attorney's fees and costs.
The agency argues that it entered into a valid settlement agreement with
complainant regarding attorney's fees and costs, and claims the AJ should
not have looked beyond the four corners of the documents to determine their
meaning. The agency states that if complainant's attorney had wanted an
increase in the amount of attorney's fees, it should have been included
within the four corners of the stipulation.
The agency states that even if the AJ did not abuse his discretion by
disregarding the parties' stipulation on reasonable attorney's fees, he
violated the EEOC's regulations by awarding such a large increase from the
stipulated amount. The agency also argues that the legal issues raised in
this case involve different claims for relief that were based on different
facts and legal theories. The agency noted that complainant was successful
regarding his sexual harassment claim, but was unsuccessful on the Letter
of Reprimand, the comment that complainant was stupid, the denial of office
supplies and the claim that the sexual harassment was in retaliation for
protected EEO activity.
With regard to the AJ's award of compensatory damages, the agency claims
complainant failed to demonstrate that he was entitled to $5,000.00 in
compensatory damages. The agency notes that complainant testified that his
reputation in the community was ruined, stating that people stared at him,
talked behind his back and looked over their shoulders at him. The agency
notes, however, that complainant failed to present testimony to
substantiate his claims.
The agency states that complainant was very vague in testifying about the
mental suffering and anguish he suffered as a result of the agency's
actions. For example, the agency notes that complainant testified he was
afraid someone was going to make a stupid remark in front of his wife and
children and stated that he was "depressed" and "very uncomfortable." The
agency also noted that complainant claimed he was diagnosed with depression
and prescribed medication; however, he failed to provide any documentation
of such a diagnosis or prescription. The agency claims the AJ's award of
$5,000.00 in compensatory damages without any substantiation of harm was
arbitrary.
In response to the agency's appeal, complainant states that the AJ
correctly framed the appropriate issues in this case to include the claim
that complainant was subjected to continuing harassment on the basis of sex
or in retaliation for prior protected EEO activity, when, on a recurring
basis, supervisors and co-workers made statements, circulated rumors and
posted graffiti suggesting that complainant was a homosexual. Complainant
states that the agency incorrectly stated that complainant must amend his
original complaint when he had already included a charge of reprisal for
exercising his protected EEO rights. Complainant also finds the AJ
correctly determined complainant showed that the harassment was
sufficiently severe and pervasive and unreasonably interfered with the
conditions of complainant's performance. Complainant states the AJ
correctly found the agency had knowledge of the sexual harassment being
directed against complainant and yet did not take prompt and effective
action to end it.
Complainant also notes that the investigative file and complainant's
reprisal complaint identified instances of claimed sexual harassment.
Moreover, complainant notes that the agency had the opportunity to depose
complainant to obtain clarification of any one of his claims, yet despite
being aware of the sexual harassment claim, did not avail itself of this
opportunity.
Complainant states the AJ's finding that he was harassed because of his sex
and that the conduct is severe and pervasive is supported by substantial
evidence in the record. Complainant also states the AJ correctly found
that he established liability on behalf of the agency.
With regard to attorney's fees, complainant states that the AJ acted within
his discretion in awarding $5,242.74 in fees and costs. In addressing the
agency's argument that the parties' stipulated to payment of $2,243.74 in
attorney's fees and costs at the hearing level, complainant notes the
agency fails to inform the Commission that its payment of such stipulated
fees was predicated upon exhaustion of all appeals. Complainant argues
that the agency's position that it would only pay the stipulated fees after
exhaustion of all appeals was recalcitrant. Complainant notes that his
attorney could not financially afford to pursue an appeal based upon a
stipulated fee amount which only covered fees through the date of the
agency's final order. Complainant states that there was never an agreed
stipulated amount of attorney's fees because the agency would only pay the
stipulated fees after exhaustion of the appellate process. Thus,
complainant claims the AJ's award of attorney's fees is supported by the
evidence of record.
Finally, complainant states he has provided uncontested testimony that he
suffered mental anguish and distress as a result of the harassment at work
and that he was due compensatory and non-pecuniary damages. Complainant
notes that he testified that his reputation in the community was ruined and
that people stared at him, talked behind his back and looked over his
shoulder at him. He also notes that he testified that there were comments,
jokes and people laughing at him as he passed. Complainant notes he also
explained that he felt the community believed the comments that he was a
homosexual and that the harassment hurt his relationship with his family.
Complainant argues that his uncontroverted testimony supports a finding by
the AJ that he was entitled to $5,000.00 in compensatory damages.
ANALYSIS AND FINDINGS
The Commission notes that the hearing in this case was held by telephone,
without the objection of the parties.1 The Commission has held that
testimony may not be taken by telephone in the absence of exigent
circumstances, unless at the joint request of the parties and provided
specified conditions have been met. See Louthen v. United States Postal
Service, EEOC Appeal No. 01A44521 (May 17, 2006).2 However, since the
facts of this case pre-date Louthen, we will assess the propriety of
conducting the hearing telephonically by considering the totality of the
circumstances. Here, it is unclear whether exigent circumstances existed.
On the other hand, it is clear that there were no issues of witness
credibility that might have been impacted by the taking of testimony
telephonically. Under these circumstances, even if it is assumed that the
AJ abused his discretion in this case by taking testimony telephonically,
the Commission finds that his action constituted harmless error.
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) (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.
We note that the agency accepted the AJ's determination that complainant
did not prove that he was subjected to discrimination with regard to the
March 19, 2002 Letter of Warning and the AJ's determination that
complainant failed to show that he was subjected to harassment in
retaliation for prior protected EEO activity. We note that complainant did
not file an appeal with the Commission challenging the agency's finding of
no discrimination with regard to the Letter of Warning or the retaliation
claim. Complainant also has not claimed that the AJ's remedial relief is
insufficient.
Sex Based Harassment
At the outset, we will address the agency's claim that the AJ abused his
discretion by considering all instances of sexual harassment raised in
testimony at the hearing, evident in the investigative file and described
in complainant's second EEO complaint, Agency Case No. 03-2507.
We note that in his first EEO complaint dated September 1, 2002, under
Agency Case No. 02-2395, complainant sought and received counseling on,
among other issues, "overall harassment" and identified sex as one of the
bases in that complaint. We also note that in a January 28, 2003 affidavit
in support of that complaint, complainant discussed allegations of sexual
harassment including a comment by Chief 2 in December 2002, that
complainant was "queer;" reference to an April 2001 joke about complainant
being gay; an incident of a picture of a flower taped to complainant's back
in April 2001; profane graffiti appearing in the men's bathroom in February
2002; a posting on a break room bulleting board depicting a gay bar as
"Cano's Place;" and an electronic mail message that was sent out to
complainant and carbon copied to Chief 3 and co-worker A referring to an
enforcement operation named "Operation Viagra." Further, we note that the
investigative file contained copies of the "Flower Girl" posting; a July
25, 2002 electronic mail message from the Port Director noting that
cartoons and caricatures of agency personnel is unauthorized and should be
removed; a July 2002 bulletin board posting depicting a gay bar as "Cano's
Place;" and the January 8, 2002 electronic mail message referring to
"Operation 'Viagra.'"
Additionally, the investigative file contains a January 30, 2003 affidavit
from Chief 2 who was questioned regarding the circulation of a gay joke in
April 2001; the profane graffiti posted in February 2002; the map depicting
a gay bar as "Cano's Place;" and the "Operation Viagra" electronic mail
message. We note the record also contains affidavits from co-worker A and
Employee X, a subordinate of complainant's, who were also questioned
regarding complainant's claims about gay jokes in the office and profane
graffiti.[2]
Additionally, the record contains a copy of complainant's Objections and
Answers to the Agency's First Set of Interrogatories, Requests for
Production and Requests for Admissions dated October 16, 2003, in
connection with Agency Case No. 02-2395. We note that in Interrogatory
numbers (3) and (12), complainant states that in addition to the accepted
issues in this case, he is asserting a claim for a hostile work environment
and states "although I am not homosexual, my supervisors and co-workers
made inappropriate comments, gestures, and have subjected me to a hostile
work place by continuing to allow supervisory personnel and co-workers to
comment to each other and outside personnel that I am a homosexual."
Further, as described above, on May 21, 2003, complainant filed a second
EEO complaint, Agency Case No. 03-2507, alleging continuing sexual
harassment when Chief 1 made the comment "Poor Cano thought he had gotten
him a man." We find that the AJ properly consolidated the "Poor Cano"
comment identified as an incidence of sexual harassment in retaliation for
protected EEO activity with the pending complaint under Agency Case No. 02-
2395.
Although we note complainant did not explicitly raise a claim of same sex
sexual harassment in his first EEO complaint, we find that the agency was
aware that complainant alleged that he was subjected to a hostile work
environment based on his sex prior to the filing and consolidation of the
second complaint. Further, we note that at the hearing, the agency was
afforded the opportunity to question complainant regarding the incidents of
sexual harassment he raised in the investigative report and at the hearing.
Additionally, we note that at the hearing the agency asked Employee X, the
Port Director and Chief 1 about, among other things: complainant's
allegations of sexual harassment, including the "Flower Girl" picture taped
to complainant's back; the bulletin board posting depicting a gay bar as
"Cano's Place;" the graffiti posted in the men's bathroom; the delivery by
the Port Director of a pink envelope to complainant stating "I hear you
like the big ones;" the Port Director's July 25, 2002 electronic mail
message regarding the posting of cartoons and caricatures; the "Poor Cano"
comment; and the circumstances surrounding complainant's three complaints
to Chief 1 regarding harassment in the work place. Upon review, we find
that the agency was given the opportunity to fully litigate complainant's
sexual harassment claim. Thus, we reject the agency's arguments that the
AJ abused his discretion in adding and rendering a decision on
complainant's claim of continuing sexual harassment. Now, the Commission
shall review the AJ's finding of discrimination.
To establish a claim of harassment based on sex, complainant must show
that: (1) he is a member of the statutorily protected class; (2) he was
subjected to harassment in the form of unwelcome verbal or physical conduct
involving the protected class; (3) the harassment complained of was based
on the statutorily protected class; and (4) the harassment affected a term
or condition of employment and/or had the purpose or effect of unreasonably
interfering with the work environment and/or creating an intimidating,
hostile, or offensive work environment. Humphrey v. United States Postal
Service, EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11.
The harasser's conduct should be evaluated from the objective viewpoint of
a reasonable person in the victim's circumstances. Enforcement Guidance on
Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).
Further, the incidents must have been "sufficiently severe and 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). In the case of harassment by a supervisor, complainant must also
show that there is a basis for imputing liability to the employer. See
Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
In the present case, complainant is a member of a statutorily protected
class, in that he is male. Additionally, the record supports the AJ's
finding that complainant was subjected to unwelcome comments, rumors and
graffiti in the workplace beginning in April 2001, and continuing through
March 2003. We note that the record reveals that among other instances, in
April 2001, complainant was told by co-worker A that he "fight[s] like a
girl;" a "Flower Girl" drawing was taped to complainant's back in April
2001; in November 2001, co-worker A said in front of a group of inspectors
over a speaker phone that complainant was "queer;" beginning in January
2002, complainant was the subject of graffiti in the men's bathroom, which
included statements, such as "Cano swallows," "Cano sucks dicks," "Cano's a
queer," "Cano takes it up the ass;" in July 2002, the bulletin board in the
break room contained a posting depicting a gay bar as "Cano's Place;" on
January 9, 2003, an electronic mail message that was sent out to
complainant by Chief 1 and carbon copied to Chief 3 and co-worker A
referring to an enforcement operation named "Operation Viagra;" agency
inspectors made gestures that they were inserting KY Jelly up their behinds
and directed it at complainant; agency inspectors used their palm pilots to
view sexual positions and directed it at complainant; and in March 2003, an
inspector commented "Hey, ask Cano what's good for a rash on his ass, you
know, and let me know, because it looks like he's tapped up today." The
record reveals that the sexually explicit remarks, graffiti, and postings
were based on complainant's sex. The record does not indicate that the
sexually explicit remarks, graffiti, and postings were based on
complainant's sexual orientation.
Moreover, the presence of the previously described sexually explicit
comments and graffiti directed at complainant, after he expressed that he
found them offensive, were sufficiently severe and pervasive to create an
intimidating, hostile, and offensive work environment. The Commission
notes that, evaluated from the viewpoint of a reasonable person in
complainant's circumstances, the sexually explicit comments and graffiti
were extremely offensive and we note the record shows that complainant, a
veteran supervisor with the agency, had his authority undermined by the
offensive conduct.
We now turn to whether the agency took prompt remedial action. Where the
agency knows or has reason to know about the occurrence of acts of sexual
harassment on the part of its employees but fails to take immediate and
effective action reasonably calculated to end the harassment, it will be
held liable for a violation of Title VII. Hayes v. United States Postal
Service, Appeal No. 01954703 (January 23, 1998). After a careful review of
the record, we find the agency knew of the hostile work environment created
by complainant's coworkers and agency supervisors, but failed to take
effective remedial action to end the harassment.
We further find liability was properly imputed to the agency. We note that
complainant first informed Chief 1 in September 2001, that co-worker A was
taking the joking to an extreme level; however, Chief 1 testified that at
the time he believed there was a falling out between friends and,
essentially did nothing in response to complainant's complaint. The record
reveals that complainant again complained to Chief 1 in October 2001, about
co-worker A's excessive joking and Chief 1 stated that he told co-worker A
that "he should refrain from any more jokes." Further, we find the record
reveals that Chief 1 did not give a serious counseling session to co-worker
A or follow up to insure the comments had ceased. We note that following
the posting of graffiti in the men's bathroom in January 2002, complainant
made a third complaint to Chief 1 regarding "sexual connotations" about him
who responded by personally removing the graffiti with coworker A's
supervisor and advising the cleaning crew that anything written of the
walls of the restroom or any other areas should be immediately erased.
Chief 1 testified that after receiving the complaint about the graffiti, he
notified the Port Director who advised him to contact internal affairs.
Chief 1 states that he contacted internal affairs but they told him they
could not take action without knowing the identity of the person writing
the graffiti. The record reveals Chief 1 did nothing to investigate the
matter to ascertain which employees were engaging in the harassment.
Further, the record reveals that the Port Director sent out a general
electronic mail message addressed to various employees advising them that
the posting of cartoons and caricatures of agency personnel in the
workplace was not permitted and could be considered a "hostile work
environment."
While responsible management officials testified to warning co-worker A to
cease the making the inappropriate comments, sending out an electronic mail
message that cartoons and caricatures of agency personnel was not
authorized, contacting internal affairs regarding offensive graffiti, and
removing graffiti from bathroom walls, we find that the agency failed to
take effective remedial action to end the hostile work environment. The
record reflects that employees continued to make comments with sexual
connotations regarding complainant following the electronic mail message
sent by the Port Director. Further, although Chief 1 contacted Internal
Affairs regarding the situation, we note he did nothing to ascertain the
identity of the harassers when Internal Affairs told him they could not
take action without knowing who the violators were. Further, although
management removed graffiti from the bathroom walls, it is evident that
graffiti continued to be posted. After carefully considering the testimony
presented at the hearing, as well as documentary evidence in the record, we
find the agency knew about the harassment and failed to take effective
remedial action, as complainant continued to receive sexually offensive
comments from coworkers. Accordingly, we concur with the AJ's finding
that complainant was harassed based on his sex and the agency failed to
take prompt and effective corrective action to stop the harassment directed
at complainant.
Compensatory Damages
The agency argues that complainant did not show he was entitled to
$5,000.00 in non-pecuniary, compensatory damages. The agency claims there
was no credible testimony presented at the hearing to justify such an
award. The agency notes that complainant had another EEO complaint pending
at the time charging that he was discriminatorily deprived of his
supervisory duties, which the agency claims affected complainant's
emotional state. Further, the agency states that complainant presented no
evidence of pecuniary loss, no evidence of mental health treatment and no
objective evidence on the alleged depression he claimed to have suffered.
Section 102(a) of the 1991 Civil Rights Act authorizes an award of
compensatory damages for all post-act pecuniary losses, and for non-
pecuniary losses, such as, but not limited to, emotional pain, suffering,
inconvenience, mental anguish, loss of enjoyment of life, injury to
character and reputation, and loss of health. In this regard, the
Commission has authority to award such damages in the administrative
process. See West v. Gibson, 527 U.S. 212 (1999). Compensatory damages do
not include back pay, interest on back pay, or any other type of equitable
relief authorized by Title VII. To receive an award of compensatory
damages, a complainant must demonstrate that she has been harmed as a
result of the agency's discriminatory action; the extent, nature and
severity of the harm; and the duration or expected duration of the harm.
Rivera v. Department of the Navy, EEOC Appeal No. 01934157 (July 22, 1994),
req. for reconsid. denied, EEOC Request No. 05940927 (December 11, 1995);
EEOC's Enforcement Guidance: Compensatory and Punitive Damages Available
Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002
at 11-12, 14 (July 14, 1992) ("Guidance"). A complainant is required to
provide objective evidence that will allow an agency to assess the merits
of her request for damages. See Carle v. Department of the Navy, EEOC
Appeal No. 01922369 (January 5, 1993).
Generally, a compensatory damages award should fully compensate a
complainant for the harm caused by the agency's discriminatory action even
if the harm is intangible. Id. at 13. Regarding non-pecuniary damages,
we note that such damages are designed to remedy harm and not to punish the
agency for its discriminatory actions. See Memphis Community School Dist.
v. Stachura, 477 U.S. 299, 311-12 (1986)(stating that compensatory damages
determination must be based on the actual harm sustained and not the facts
of the underlying case). A proper award of non-pecuniary damages should
not be "monstrously excessive" standing alone, should not be the product of
passion or prejudice, and should be consistent with the amount awarded in
similar cases. See Ward-Jenkins v. Department of the Interior, EEOC Appeal
No. 01961483 (March 4, 1999) (citing Cygnar v. City of Chicago, 865 F. 2d
827, 848 (7th Cir. 1989)).
Upon review, we find that the AJ's award is consistent with the amounts
awarded in similar cases, given the level of harm experienced by
complainant. See Walker v. Department of the Navy, EEOC Appeal No. 07A20111
(September 30, 2003) (complainant awarded $7,500.00 in non-pecuniary
damages for humiliation and marital tension resulting from sex harassment);
Linder v. United States Postal Service, EEOC Appeal No. 01A24191 (September
24, 2003), req. for reconsid. den., EEOC Request No. 05A40186 (December 1,
2003) ($3,500.00 awarded in non-pecuniary damages for emotional distress,
headaches and difficulty sleeping and getting up for work resulting from
sex harassment). The Commission further notes that the amount awarded by
the AJ meets the goals of not being motivated by passion or prejudice, not
being "monstrously excessive" standing alone, and being consistent with the
amounts awarded in similar cases. We therefore discern no basis to disturb
the AJ's decision awarding $5,000.00 in non-pecuniary, compensatory
damages.
Attorney's Fees
On appeal, the agency claims that the parties had stipulated to attorney's
fees in the amount of $2,000.00 and argues that the AJ abused his
discretion by disregarding the parties' stipulation and awarding more than
double the stipulated amount.
The record reveals that on January 28, 2004, complainant's attorney
submitted a verification of fees and costs to the Administrative Judge.
Complainant's attorney stated that the total legal fees for the case were
$5,587.50 representing 37.25 hours of work done multiplied by an hourly
rate of $150.00. The petition listed $243.74 in costs. In a cover letter
accompanying the fee petition, complainant's attorney stated that he and
the agency had reached an agreement that $2,000.00 in attorney's fees was
fair and reasonable for the case.
In a letter dated January 30, 2004, the agency representative responded to
complainant's fee petition and agreement to attorney's fees stating that it
does not have settlement authority to agree to a settlement regarding fees.
In a February 9, 2004 letter to the AJ, the agency stated "[t]he Agency
agrees with the amount of fees totalling $2,243.74, with the understanding
that the Agency will not pay such amount until all appellate processes have
been exhausted."
Thereafter, the AJ issued a Supplemental Decision Concerning Attorney's
Fees. In his decision, the AJ found the hourly rate of complainant's
attorney fell within the rates charged by attorneys in the representative's
practice area for the same or similar professional legal services. The AJ
found that costs in the amount of $243.74 was reasonable. The AJ noted
that notwithstanding the fact that complainant prevailed on only a portion
of his complaint, his success was primarily due to the quality of
representation by his attorney. Additionally, the AJ noted that the "same
sex" (male) "hostile work environment" issue successfully prosecuted by his
attorney was uncommon. Based on these circumstances, the AJ awarded
$5,000.00 in attorney's fees.
We note that the agency does not challenge the hourly rate charged by
complainant's attorney. The agency also does not claim that any of the
hours billed by complainant's attorney are excessive, redundant, or
unnecessary.
Upon review, we find there was no settlement agreement reached between the
parties with regard to attorney's fees. Specifically, we find there was no
written document indicating that the parties reached a settlement agreement
on the issue of attorney's fees and costs. We recognize that in the
January 12, 2004 decision, the AJ informed the parties they could stipulate
to the amount of reasonable attorney's fees; however, we note that there
was no joint submission in the record showing such a stipulation was
reached. Further, we note that while it appears that originally, the
parties may have agreed that $2,000.00 was a reasonable amount of
attorney's fees, we note that complainant did not accept the agency's
position as explained in its February 9, 2004 letter that payment of the
$2,000.00 in attorney's fees by the agency was conditioned on the
exhaustion of all appellate processes.
By federal regulation, the agency is required to award attorney's fees for
the successful processing of an EEO complaint that alleged discrimination
under Title VII of the Civil Rights Act and the Rehabilitation Act. EEOC
Regulation 29 C.F.R. � 1614.501(e)(1)(ii). In order to obtain an award of
attorney's fees, a complainant must be considered a prevailing party. See
Equal Employment Opportunity Management Directive of 29 C.F.R. Part 1614
(EEOC MD-110), Chapter 11. In determining the degree of success, the
Commission will consider all relief obtained in light of the complainant's
goals, and, if a complainant achieved only limited success, he should
recover fees that are reasonable in relation to the results obtained.
Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). Finally, the attorney
requesting the fee award has the burden of proving, by specific evidence,
his or her entitlement to the requested amount of attorney's fees and
costs. Copeland v. Marshall, 641 F.2d 880, 892 (D.C. Cir 1983).
The Commission has held that one method of addressing the appropriate
amount of attorney's fees when a complainant is not completely successful
is to take a percentage across-the-board reduction of compensable time
billed. Blinick v. Department of Housing and Urban Development, EEOC
Appeal No. 07A20079 (February 3, 2004). Even if complainant did not
prevail on every aspect of his complaint, that does not, in itself, justify
a reduction in the hours expended where the successful and unsuccessful
claims are closely intertwined. Id. "Claims are fractionable or unrelated
when they involve distinctly different claims for relief that are based on
different facts and legal theories." Id.
In the present case, the Commission finds that complainant did not prevail
on every aspect of his complaint. The record reveals that following a
hearing, complainant prevailed on the issue of sex based harassment.
However, complainant did not prevail onf the issue of harassment based on
retaliation for prior protected EEO activity. Additionally, we note
complainant withdrew two issues from consideration (the comment complainant
was stupid and that he was told to get his own office supplies) three weeks
prior to the start of the hearing. Further, during the hearing the
Administrative Judge granted summary judgment in favor of the agency with
regard to the issue of the Letter of Reprimand. The Commission finds that
the Letter of Reprimand claim can be identified as separate from the same
sex based harassment claim because it involved different facts and legal
theories. Since complainant did not prevail on the Letter of Reprimand
issue, we find he is not entitled to compensation for work involving this
fractionable issue. We find however, that complainant was successful with
respect to the sex based harassment issue, and, as such, he should be
compensated for work on that issue. We note that the fee petition in this
case does not delineate work performed based on individual claims. After
careful consideration of the petition, we find that a reduction of hours by
25% is warranted. Applying this reduction, we find that complainant is
entitled to fees for 27.94 hours of work by his attorney at the rate of
$150.00 per hour for a total award of $4,191.00 in attorney's fees.
Complainant is also entitled to reimbursement for costs in the amount of
$243.74.
CONCLUSION
Accordingly, the agency's final order finding complainant was not subjected
to sexual harassment is REVERSED and the matter is REMANDED for further
action in accordance with the Order listed below.
ORDER
The agency shall provide the following relief to complainant to the extent
it has not already done so:
1. Within 30 days of the date this decision become final, the
agency shall pay directly to complainant, as non-pecuniary,
compensatory damages, the sum of $5,000.00.
2. Within 30 days of the date this decision become final, the Port
Director will distribute to every employee assigned to the
Hidalgo/Pharr Port of Entry, a written statement reiterating the
agency's policy concerning sexual harassment and hostile work
environment, and will address the issue of same sex harassment
within that document. The agency will certify to complainant
that the required distribution has been completed.
3. Within 180 days of the date this decision become final, the
agency will arrange for all supervisors and other identified
personnel, to specifically include the Port Director, Chief
Customs Inspector 1, and co-worker A, Supervisory Customs
Inspector, who are assigned to the agency's Hidalgo/Pharr Port
of Entry, to undergo a comprehensive course of instruction
concerning sexual harassment and hostile work environment. The
instruction will include a segment on same sex harassment. The
agency shall certify to complainant that the required training
has been completed by all personnel.
4. Within 30 days of the date this decision become final, the
agency shall pay complainant $4,191.00 in attorney's fees and
$243.74 in costs.
The agency shall submit evidence showing compliance with this decision to
the Compliance Officer referenced herein under Implementation of the
Commission's Decision.
POSTING ORDER (G0900)
The agency is ordered to post at its Department of Homeland Security's
Hidalgo/Pharr Port of Entry facility located in Pharr, Texas, 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
August 2, 2006
__________________
Date
-----------------------
[1][2] In the second October 31, 2002 letter, the agency reiterated it was
accepting issues (1) and (2) for processing; however, it did not mention
whether issue (3) was accepted or dismissed.
1The mere lack of an objection is not dispositive, however. See
Louthen v. United States Postal Serv., EEOC Appeal No. 01A44521 (May 17,
2006).
2"In Louthen, the Commission has promulgated its policy regarding the
taking of telephonic testimony in the future by setting forth explicit
standards and obligations on its Administrative Judges and the parties.
Louthen requires either a finding of exigent circumstances or a joint and
voluntary request by the parties with their informed consent. When
assessing prior instances of telephonic testimony, the Commission will
determine whether an abuse of discretion has occurred by considering the
totality of the circumstances. In particular, the Commission will consider
factors such as whether there were exigent circumstances, whether a party
objected to the taking of telephonic testimony, whether the credibility of
any witnesses testifying telephonically is at issue, and the importance of
the testimony given telephonically. Further, where telephonic testimony was
improperly taken, the Commission will scrutinize the evidence of record to
determine whether the error was harmless, as is found in this case."
Sotomayor v. Department of the Army, EEOC Appeal No. 01A43440 (May 17,
2006).
[3] We note the record contains an affidavit from Chief 1; however, his
affidavit does not contain questions or responses concerning complainant's
sexual harassment claim.
Comments