MATTHEW J. SIPRIANO, COMPLAINANT,
v.
JANET NAPOLITANO, SECRETARY, DEPARTMENT OF HOMELAND SECURITY, (CITIZENSHIP AND IMMIGRATION SERVICES), AGENCY.

Appeal No. 
0120103167
Agency No. HS-06-CIS-000913

January 20, 2011

DECISION

On July 24, 2010, Complainant filed an appeal from a final Agency decision (FAD) dated June 21, 2010, concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a).

ISSUES PRESENTED

Whether Complainant was discriminated against based on his race (Hispanic), sex (male) and physical disability (hearing impairment) when:
1. between June 2005 and March 2006, his first line supervisor subjected him to a hostile work environment by making threatening, accusatory, and disparaging comments to and about him, disregarded his hearing problems by meeting with him and assigning him work in loud areas, made him engage in physical tasks beyond his restriction, over scrutinized his work, assigned him elementary work duties, and limited his responsibilities;
2. between June 2005 and March 2006, his first-line supervisor failed to accommodate his disability; and
3. on March 17, 2006, the Agency terminated his employment.

BACKGROUND

Complainant filed an EEO complaint alleging the above issues. The Agency completed its investigation of the complaint in October 2006, and its June 2010 FAD found no discrimination.

At the time of events giving rise to this complaint, Complainant worked as a Clerk, GS-0303-4, at the Agency's Citizenship & Immigration Services, Dallas District Office, in Dallas, Texas. Complainant was hired in 2002 as part of a student program, and was attending college. In his complaint, he characterized himself as a student aide. Complainant's most recent appointment paper indicated that he was hired effective May 18, 2005, not to exceed May 17, 2006, as an extension of a temporary hire, with the note that he was enrolled in school.

Complainant's responsibilities were receiving telephone calls and visitors, typing and compiling correspondence, using a database and training people on it, doing clerical support functions, and ordering and storing supplies and delivering them to people in various offices.

Complainant was born with the diagnosed birth defect of microtia and auditory canal atresia of the right ear, and has a hearing impairment. He stated that when more than one person talks to him or he is in a group conversation, he has much difficulty comprehending what people are saying, that he can't have people talk to him from the back or side, and he must have face to face communication to avoid misinterpretations. Complainant stated that when he is in a noisy environment he can't comprehend audible sounds.

In March 2005, Complainant had surgery on his right ear. When he returned to work in June 2005, he was placed under a new first-line supervisor, Supervisor 1 (Hispanic male). Complainant stated that in connection with his surgery, he was given a 10 pound lifting restriction and submitted medical documentation of this to Supervisor 1 and his new second line supervisor (Caucasian female). Complainant stated that an ongoing side effect of his surgery was migraine headaches. His sister also worked as a Student Aide, GS-303-4, and had the same first and second line supervisors as Complainant. She stated Complainant had migraines which made him ill enough that he needed to leave work early and have someone drive him home. She stated that she told Supervisor 1 that Complainant could not hear on his right side, seemed to have worse and more frequent migraines after the surgery, and often explained the seriousness of Complainant's condition to Supervisor 1. Supervisor 1 claimed that he did not know about Complainant's disability because he did not have a written statement from his doctor. Supervisor 2 stated she was aware Complainant had a hearing loss.

Complainant stated that upon his return, the District Director assigned him to the Criminal Unit in the Life Act Building to reduce a backlog and streamline processes, and he was complemented on a job well done and received spot awards. He indicated that soon thereafter, Supervisor 1 increased his responsibilities to provide administrative support in Criminal Unit, Orphans Unit, do vehicle management, be involved in naturalization ceremonies, and other special projects as assigned by the District Director. The Orphan's Unit was located in the District Building, which was down the road from the Life Act Building. In October 2005, Supervisor 1 assigned Complainant to work part-time in the Orphans Unit. Complainant stated that he was recovering from surgery, and when he advised Supervisor 1 that he was still weak and tired easily, and that his large workload and traveling between buildings was overwhelming, Supervisor 1 would say I expect you to do your job. Complainant stated that Supervisor 1 seemed to forget that he attended school and had numerous tasks waiting for his attention whenever he reported to work.

In the District Building, Complainant reported to a fixed work area on the second floor, above the Orphans Unit. In November 2005 Supervisor 1 moved Complainant to a cubicle outside Supervisor 2's office, who was responsible for the Orphan's Unit. Supervisor 2 stated that Complainant was moved because he was previously working upstairs away from the orphan officers, who were forced to go upstairs to find cases, and a better place for clerical support was downstairs near the orphan officers. She stated the only clerical space available was outside her office. While Complainant continued to report to Supervisor 1, the record suggests that Supervisor 2 indirectly managed some of Complainant's activities in the Orphan's Unit.

Complainant contended that he was moved from a quiet area to a high noise area, where officers conducted applicant interviews, doors repeatedly slammed shut since the lobby was steps away, phones rang loudly, and Supervisor 2 had her personal cell phone set on high which rang throughout the day, and she talked loudly. Complainant formerly reported to Supervisor 2 and he stated that they had a problem relationship and partly for this reason he did not want to sit in this cubicle. Complainant contended that Supervisor 1 did not grant his request to stay in a quiet area, and that he repeatedly told him that he could not hear him when he came up behind him, to no avail. Complainant stated that Supervisor 1 always held meetings with him in areas that were subject to high noise, making it hard to hear him. Complainant conceded that his hearing disability did not affect his ability to do his job because he needed minimal supervision, and most of the directions he received were in writing.

Supervisor 2 stated that their work required telephone conversations, and all employees are subjected to the same noise level on a routine basis unless they are in a private office. She stated that if Complainant ever asked to go into a private office for a conversation due to the noise level, he would have been accommodated, but he never asked her. Supervisor 1 stated that he met with employees in his office or the nearest empty office, where there was no noise. He stated Complainant tried to claim the cubicle in the Orphans Unit was a bad or unsuitable work area, but his main complaint was lack of radio reception and being assigned near Supervisor 2, who allegedly harassed him by saying "good morning" to him. Supervisor 2 stated that after Complainant was directed to move to the cubicle in the Orphans Unit, it took many business days to get it done, and in the end, Supervisor 1 had to move Complainant. She stated Complainant's excuses for not moving ranged from the printer did not work to he could not get any radio reception, but he did not call the help desk to get the printer working.

Complainant complained that Supervisor 1 mockingly said it would take an "Act of Congress" to get him to move; said it was embarrassing to have a Supervisor move a subordinate's work files; would say make comments like "maybe you didn't hear me" in a sarcastic tone, and told Complainant he had no rights to protect his position because he was a student aide. He contended these comments were discriminatory. When generally asked by the EEO investigator if he made threatening, accusatory, and disparaging comments to Complainant, Supervisor 1 generally replied that he did not do so.

Complainant contended that around November 2005 Supervisor 1 started to often ask him about his whereabouts and what he was doing; and make comments that he was goofing off and not working. He stated that Supervisor 1 would give him a list of tasks to complete by the close of business when Complainant was at the Life Act Building for the day. Complainant stated that Supervisor 2 would tell Supervisor 1 that Complainant was never at his desk and goofing off when he was filing in the file room, and she would stare at him. Complainant's sister stated that she witnessed Supervisor 1 interrogate Complainant on his whereabouts one day, and Complainant responded that he was at his desk the whole day updating the Orphans database, and only left briefly to file and go to lunch, but Supervisor 1 did not accept this, saying he looked for Complainant. In December 2005, Supervisor 1 assigned Complainant to work exclusively in the Orphans Unit.

For the Spring 2006 semester, Complainant reduced his work schedule to one day a week. Around this time, Supervisor 1 only assigned Complainant to file in the Orphans Unit, eliminating his other duties, which Complainant alleged was discriminatory. When asked by the EEO investigator why he scrutinized Complainant's work and reduced his job responsibilities, Supervisor 1 responded that Complainant lacked motivation, which led to a lack of organization and neatness in handling applications and files, and Orphans' officers complained about not being able to find him when needed and not being able to find case files because Complainant did not file them properly. Supervisor 1 later stated that in February and March 2006, Complainant's conduct and attitude toward management deteriorated to the point that he would challenge or question every decision made by him. Supervisor 2 stated many cases Complainant handled were half done or not done correctly. She stated that when Complainant started working one day a week, it immediately became noticeable that he could not be assigned work that needed to be expedited since it would not necessarily get done in the one day he was there, so he was assigned filing duties that were necessary but not required to be done expeditiously.

Complainant wrote that on March 10, 2006, he developed an excruciating migraine, and because he could not locate Supervisor 1 or his second line supervisor, he spoke with a Program Analyst that second line supervisor left in charge. According to Complainant, the Program Analyst told him he could extend his 15 minute break by 10 minutes and put his head down on his desk, and advised he tell someone else about the migraine. The Program Analyst stated that she advised Complainant that he gets a 15 minute break and let someone else in the office know he was taking a break. Complainant stated that within minutes of putting his head down, Supervisor 1 walked by and said he finally caught him sleeping on the job. Complainant wrote that he tried to explain that he had an excruciating headache and told his co-worker Program Analyst, but Supervisor 1 yelled and said he did not care about the migraine and ordered him to step into a private office to meet. According to Complainant, Supervisor 1 told him he knew he was unhappy in his job, that if he was going to have a migraine he did not have to be here, that he wanted him to leave now, he was not productive today, and he was always sick on Fridays. Complainant stated that in an escalated voice Supervisor 1 said I want you to get out of this private office now, come on, lets go, get up and out, and then yelled at him saying I'm giving you a direct order to get out of this private office, do you realized this is a direct order and if you do not get out, I'll consider you insubordinate. Complainant wrote that he again tried to talk to Supervisor 1 by saying he did not understand, and Supervisor 1 replied by saying this is a warning, I consider you insubordinate, and Complainant then returned to his cubicle.

Complainant stated that when he returned to work on March 17, 2006, Supervisor 1 and the Acting District Director met with him and told him he was being fired for bad conduct, bad attitude, and bad workmanship. Complainant stated that he asked at least four times why he was being terminated, because to the best of his knowledge he was completing and meeting all his assigned work, but they declined to provide him any information, and said he was not entitled to see email complaints against him. When asked by the EEO investigator what reasons were provided for terminating Complainant, Supervisor 1 stated none, and offered no reasons. The termination letter was signed by the Acting District Director, and merely notified Complainant that he was terminated without giving any reasons.

Supervisor 1 stated that the people involved in the termination were him and the Acting District Director. When asked if he had any documents to support his actions or contentions, Supervisor 1 stated yes, but none are in the record. Supervisor 1 informed the EEO investigator that the Complainant's second line supervisor was aware of all the details in reference to Complainant, but a statement was not taken from her, nor the Acting District Director. Supervisor 2 did not give information on why Complainant was terminated.

At another time, according to Complainant, his second line supervisor told her son that she needed to find a way to get rid of him because he was always in school, and when he came to the office, according to Supervisors 1 and 2, he did not work. Complainant indicated that he was working. In his most recent performance appraisal in the record, which covered the period of April 1, 2004 to March 31, 2005, Complainant was rated excellent in every performance element, and the narrative commentary was positive.

FAD
The Agency found that Complainant failed to prove that he was subjected to discrimination as alleged. As an initial matter, the Agency found that Complainant established that he has a disability based on his hearing loss and related migraines within the meaning of the Rehabilitation Act, and could perform the essential functions of his position. In finding Complainant was not harassed, the Agency determined that things did not occur as Complainant alleged. The Agency credited Supervisor 1's statement that he met with employees in quiet private offices, found that Complainant's new cubicle was not loud, found that Complainant was not directed to exceed his lifting restriction, and found that Supervisor 1 scrutinized Complainant's work because he lacked organization and filed cases incorrectly. The Agency found that Complainant was moved to meet the needs of the Orphans Unit, and his assignments were later reduced because he started working only one day a week.

The Agency found that it did not deny Complainant a reasonable accommodation by moving him to the cubicle in the Orphans Unit. It found that Complainant provided no evidence that he asked not to be moved as a reasonable accommodation, and he acknowledged not wanting to be in the cubicle because it was close to Supervisor 2. The Agency also found that Complainant acknowledged receiving most of his directions in writing.

In finding that Complainant's termination was not discriminatory, the Agency referred to Supervisor 1's statement that officers in the Orphans Unit complained they were unable to locate Complainant when needed, they were unable to locate files because he misfiled them, and Complainant lacked motivation and organization in handling applications and files. It referred to Supervisor 2's statements recounted above which criticized Complainant's work and indicated he did not follow directions to move to his cubicle. The Agency found that Complainant acknowledged Supervisor 1 said he was terminated because he had poor attitude, workmanship, and conduct.

On appeal, Complainant argues that Supervisor 1 was biased against him because of his disability. The Agency makes no comment.

ANALYSIS AND FINDINGS

To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their statutorily protected class; (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; and (5) there is a basis for imputing liability to the employer. SeeHenson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment."Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). 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 at 6 (Mar. 8, 1994).

An agency must provide reasonable accommodation to the known physical or mental limitations of qualified applicants or employees with disabilities unless it can demonstrate that the accommodation would impose an undue hardship on the operations of its program. 29 C.F.R. § 1630.9(a) & (b).

Since the Agency does not contest that Complainant is a qualified individual with a disability, the Commission may proceed to the questions of whether he was harassed, not reasonably accommodated, and disparately treated because of his disability.

Claim 1
Complainant contended that Supervisor 1 assigned him an overwhelming amount of work starting around August 2005. He stated that the assignments did not take into account that he was fatigued after his surgery, and Supervisor 1 seemed to forget that he attended school and had numerous tasks awaiting him whenever he reported to work. While Complainant may have been burdened, he has not shown that Supervisor I assigned him additional tasks because of his disability. Rather, Supervisor 1 did not take Complainant's disability into account in making the assignments. Complainant has not submitted any medical documentation showing he needed an adjustment with his work, such as not being assigned to two buildings, due to disability. There is no indication in the record that Complainant's 10 pound lifting restriction was violated. We note that like Complainant, Supervisor 1 is a Hispanic male. There is no evidence in the record that Complainant was targeted for additional work because of his race and sex.

Regarding threatening, accusatory, and disparaging remarks, some were related to Complainant not taking action to move to his new cubicle, even after being told to do so. For example, while Supervisor 1's comment that it would take an "Act of Congress" to get him to move was mocking, it was not discriminatory since it was related to Complainant not taking action, not his disability. Further, the record does not show that the remarks were sufficiently severe or pervasive to unreasonably interfere with Complainant's work environment.

The record shows that Complainant was moved to a new cubicle in the Orphans Unit, which he contends was a louder area, so he could better support that unit, not because of his disability, race, or sex. Complainant failed to show that he was subjected to a hostile work environment on any bases.

Claim 2
Complainant contended that he was denied reasonable accommodation when the Agency declined his request to stay in quiet area rather than move to a cubicle in the Orphans Unit. Contrary to the Agency's finding, we find that the cubicle in the Orphans Unit was loud, based on Complainant's specific explanation of the noise. The record does not show that telephone interviews were being conducted in Complainant's prior location. We also find that while Complainant complained that he did not want to be in the cubicle because it was close to Supervisor 2 and had poor radio reception, he also asked not to move there and or leave because of the noise. Complainant stated that he complained to Supervisor 1 that the cubicle was in an area that was too noisy because of his hearing problem, and Supervisor 1 conceded that

Complainant tried to make the cubicle sound like a bad or unsuitable work area. Complainant has not shown, however, that the Agency violated the Rehabilitation Act on this matter. Complainant conceded that most of the directions he received were in writing, that his hearing disability did not affect his ability to perform, and he worked with minimal supervision. Also, while Supervisor 1 may have sometimes spoken to Complainant in noisy areas, the record does not show that he was given work he was unable to perform because he did not hear what he was supposed to do. [FN1] Complainant has not shown he required accommodations to perform the essential functions of his job or access benefits or privileges, or was denied them because of his race or sex.

Claim 3
In analyzing a disparate treatment claim under the Rehabilitation Act, where the agency denies that its decisions were motivated by complainant's disability and there is no direct evidence of discrimination, we apply the burden-shifting method of proof set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).SeeHeyman v. Queens Village Comm. for Mental Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68 (2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999). Under this analysis, in order to establish a prima facie case, complainant must demonstrate that: (1) he is an "individual with a disability"; (2) he is "qualified" for the position held or desired; [FN2] (3) he was subjected to an adverse employment action; and (4) the circumstances surrounding the adverse action give rise to an inference of discrimination. Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001). The burden of production then shifts to the agency to articulate a legitimate, non-discriminatory reason for the adverse employment action. In order to satisfy his burden of proof, complainant must then demonstrate by a preponderance of the evidence that the agency's proffered reason is a pretext for disability discrimination. Id.

As found above, on his disability claim, Complainant has met the first and second elements of the prima facie case, and likewise is a member of the protected groups of Hispanic male. He was subjected to an adverse action, termination.

The circumstances surrounding the termination do not raise an inference of race and sex discrimination. Both managers involved in the removal were male, and one of them, Supervisor 1, is Hispanic. There is no evidence in the file of biased comments about Hispanics or males, or that other Hispanics and males were disparately treated.

The circumstances surrounding the termination do raise an inference of disability discrimination. On Complainant's last workday prior to the termination, after taking steps to get permission to rest his head because of an excruciating migraine headache, Supervisor 1 saw him, yelled that he finally caught him sleeping on the job, did not care about the migraine, and wanted him to leave because he was not productive that day. He was terminated his next work day. This raises an inference of bias against Complainant because of his disability.

Contrary to the finding in the FAD, the Agency gave no explanation for the removal. Supervisor 1 and the Acting District Director were involved in the termination. When asked by the EEO investigator what reasons were provided for terminating Complainant, Supervisor 1 stated none, and offered no reasons. There is no statement in the record by the Acting District Director.

Complainant stated that in the termination meeting he was told he was being terminated for bad conduct, bad attitude, and bad workmanship. This came from Complainant, not the Agency, which gave no explanation for the removal in the termination or other documentation, or during the EEO investigation.

Complainant stated that in the termination meeting he asked at least four times why he was being terminated, because to the best of his knowledge he was completing and meeting all his assigned work, but management declined to provide him any information, In his most recent performance appraisal in the record, which covered the period of April 1, 2004 to March 31, 2005, Complainant was rated excellent in every performance element, and the narrative commentary was positive. While Supervisor 1 made some statements criticizing Complainant's performance and conduct, he did not link them to the termination. Supervisor 1 also did not describe any incidents illustrating alleged bad conduct. The Agency has not articulated a reason for removing Complainant.

In light of Complainant being fired his next workday after Supervisor 1 blew up and got angry at him because he had a migraine, and the Agency not giving a reason for terminating him, we find that the Agency discriminated against Complainant based on his disability when it terminated him. Supervisor 1 told Complainant that as a student aide he had no job protections, which indicates the decision to remove Complainant and removing him could be done quickly.

Remedies
Complainant is entitled to back pay, with interest and benefits, from March 17, 2006, the date of his removal, through at least May 17, 2006, when his temporary appointment was scheduled to expire.

A supplemental investigation is required to learn if it was more likely than not that Complainant would have worked beyond May 17, 2006, for example, was it likely Complainant's term appointment would have been renewed one or more times. McCann v. Department of the Air Force, EEOC Appeal No. 01981491 (October 23, 1998). Complainant had been working since 2002, so it appears he had a series of term appointments which were renewed. If Complainant can show this, he would be entitled to additional back pay, and an offer of reinstatement if it is more likely than not he would still be working. This matter will be addressed in the order below.

In his complaint, Complainant requested compensatory damages. This matter was not investigated, and one is necessary to make a determination on compensatory damages.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's finding of no discrimination on claims 1 and 2. On claim 3, the Agency's finding of no race and sex discrimination is AFFIRMED, and its finding of no disability discrimination is REVERSED.

ORDER

The Agency is ordered to take the following remedial actions:
1. Expunge from Complainant's OPF all documentation connected to his termination of March 17, 2006, and all documentation, if any, that refers to the termination, within 60 calendar days after this decision becomes final.
2. Determine the appropriate amount of back pay, with interest, and other benefits due Complainant, pursuant to 29 C.F.R. § 1614.501, from March 17, 2006 through May 17, 2006, no later than 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 60 calendar days of the date the Agency determines the amount it believes to be due. The Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision".
3. Consider taking disciplinary action against Supervisor 1 and the Acting District Director referenced in this decision within 90 calendar days after this decision becomes final. 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.
*10 4. Require Supervisor 1 and the Acting District Director referenced in this decision to take training on how to identify and avoid disability discrimination within 90 calendar days from the date this decision is final.

In addition, the Agency shall conduct a supplemental investigation to learn if it was more likely than not that Complainant would have worked beyond May 17, 2006, for example, was it likely Complainant's term appointment would have been renewed one or more times. If Complainant can show this, he would be entitled to additional back pay, and an offer of reinstatement if it is more likely than not he would still be working.

The Agency's supplemental investigation must also investigate if Complainant is entitled to compensatory damages, and the amount of such damages.

After completing the supplemental investigation, Agency shall issue a FAD, appealable to this office, which determines the appropriate back pay period, if any, beyond May 17, 2006, whether Complainant is entitled to reinstatement, and calculates compensatory damages, if any. The Agency shall complete the supplemental investigation and issue a FAD within 120 calendar days after this decision becomes final.

The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation of the Agency's calculation of back pay and other benefits due Complainant, including evidence that all ordered corrective action has been implemented.

POSTING ORDER (G0610)

The Agency is ordered to post at its Citizenship and Immigration Services, office of Associate Director Operations, Office of Field Operations, Dallas District Office in Dallas, 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 (H0610)

If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he 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 (K0610)

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 77960, Washington, DC 20013. 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. See29 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. See29 C.F.R. § 1614.409.

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0610)

This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z0610)

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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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

[FN1]. While Complainant stated that the noisy environment around the cubicle was unbearable and contributed to the onset of migraines, and that he told Supervisor 1 the noisy environment was unbearable and affected his ability to hear directions, he did not state he advised management being in the cubicle caused migraines.

[FN2]. To establish a prima facie of race and sex discrimination, elements 1 and 2 are substituted for showing he is a member of the protected groups, Hispanic and male, which he has done.