APPELLANT,
v.
TOGO D. WEST, JR., SECRETARY, DEPARTMENT OF THE ARMY, AGENCY.

Appeal No. 01933866
Agency No. 91-09-0017
Hearing No. 170-93-8116X

November 22, 1995

DECISION

On July 20, 1993, Appellant (hereinafter referred to as appellant) timely initiated an appeal to the Equal Employment Opportunity Commission (EEOC) from the final decision of the Secretary, Department of the Army (hereinafter referred to as the agency), dated June 21, 1993, regarding his equal employment opportunity (EEO) complaint which alleged discrimination based on his race (black) and disability (alcoholism) in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq, and § 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §791 et seq. This appeal is accepted by the Commission in accordance with the provisions of EEOC Order No. 960, as amended.

ISSUES PRESENTED

The issues presented in this case are whether appellant proved that the agency discriminated against him based on his race (black) and disability (alcoholism) when it (1) allegedly subjected him to a hostile work environment and (2) removed him from the Federal service, effective May 20, 1991, for violation of a last chance agreement and for the prior instances of absence without official leave (AWOL) on which the last chance agreement was based.

BACKGROUND

Appellant filed a formal EEO complaint, dated August 21, 1991, alleging that the agency discriminated against him based on his race (black) and disability (alcoholism). The agency accepted and investigated appellant's complaint and issued a proposed disposition finding no discrimination. Appellant then requested a hearing before an EEOC Administrative Judge (AJ).[FN1] After a hearing, the AJ issued a recommended decision finding that appellant had failed to prove the agency discriminated against him based on his race and disability when it allegedly harassed him about entering into a rehabilitation program and then terminated his employment for violation of the last chance agreement. Thereafter, the agency issued a decision that adopted the recommended decision as the final agency decision on appellant's complaint. Appellant then filed the instant appeal.

The essential facts are not in dispute. Appellant was employed as a Warehouse Worker (Forklift Operator) in the Hazardous Storage Branch, Hazardous Supply Division, Directorate of Supply, Ammunition and Transportation, at Letterkenny Army Depot in Chambersburg, Pennsylvania. On January 4, 1990, the Branch Chief (white) issued appellant a letter informing him that his sick leave record had not improved following counseling on November 29, 1989. The letter further indicated that the Branch Chief would approve appellant's sick leave requests only if appellant provided a statement from a medical practitioner indicating that he was incapacitated for duty, the beginning and ending dates of the incapacitation and the nature of the incapacitation (not necessarily the specific nature of the disease, injury or illness). The Branch Chief subsequently issued appellant a three-day suspension for his first AWOL offense on June 19, 20, 21, and 22, 1990 and his second AWOL offense on June 28 and 29 and July 2 and 3, 1990. Appellant agreed to participate in the agency's Elected Voluntary Alternate Descom Discipline (EVADED) Program wherein he agreed to admit his wrongdoing and to waive his right to appeal or grieve the suspension in exchange for not having to serve the suspension. On October 31, 1990, the Branch Chief issued appellant a notice of proposed removal for his third offense of AWOL on August 21, 22, 23, 24, and 27, 1990.

On November 20, 1990, appellant enrolled in the Depot's Alcohol and Drug Abuse Prevention and Control Program (ADAPCP). The Division Chief (white) then requested that Management Employee Relations (MER) hold the proposed removal in abeyance until appellant completed the program. However, appellant failed to attend all the required ADAPCP meetings. Moreover, his attendance did not improve. On January 31, 1991, the ADAPCP Manager, the Division Chief and the Branch Chief met with appellant to obtain a commitment from him to seek additional counseling. Appellant did not make the commitment on that day or thereafter. On February 13, 1991, agency officials learned from the Military Police that appellant had not had a valid state driver's license since June 1990. According to the record, appellant could operate a forklift without a driver's license but he could not perform job duties that required the use of a motor vehicle. The record does not provide any additional information concerning the frequency and importance of the various job duties. However, the record indicates that the agency permitted appellant to remain in his Forklift Operator position, operating forklifts, after it learned of the license suspension/revocation.

On February 15, 1991, the ADAPCP Manager, the Division Chief, the Branch Chief, and an Employee Relations Specialist met with appellant and offered him a choice between participation in an in-patient rehabilitation program and removal citing the "firm choice" doctrine. Appellant did not agree to enroll in an in-patient treatment program at that meeting or during another such meeting held on March 7, 1991. Between January 1, 1991 and March 7, 1991 appellant incurred an additional eight and one-half days of AWOL. On March 6, 1991, the Division Chief initiated the removal process. On March 12, 1991, agency officials learned from a local newspaper that the Chambersburg police had arrested appellant for public drunkenness on March 11, 1991. Appellant entered the Roxbury Treatment Program in Shippensburg, Pennsylvania, on March 18, 1991.

On April 1, 1991, the ADAPCP Manager, the Division Chief, and the Employee Relations Specialist met with appellant at the in-patient treatment facility and offered him a last chance agreement. According to the ADAPCP Manager, he told appellant that he could have someone represent him, for example, a union official, but appellant declined. Appellant appeared to read the document before he signed it. In the last chance agreement the agency agreed to hold the proposed removal in abeyance and, upon appellant's adherence to the terms of the agreement for one year, to cancel the proposed removal. In exchange, appellant agreed to (1) complete the inpatient rehabilitation program; (2) meet the post-discharge requirements set forth by the rehabilitation center; (3) remain punctual and regular in attendance; (4) obtain supervisory approval for all absences from duty in accordance with established leave requesting procedures; (5) maintain a satisfactory level of performance of his current job duties; and (6) refrain from committing any further incidents of misconduct.

Appellant left the Roxbury Treatment Program prior to completion and against medical advice on Friday, April 12, 1991. He did not report to work the following Monday. On Thursday, April 18, 1991, appellant notified the Branch Chief that he was under his physician's care and would return to work on Monday, April 22, 1991. Upon return appellant provided a statement from his physician that did not satisfy the requirements of the sick-leave letter. On April 22, 1991, the Division Chief again began the removal process. By memorandum dated May 10, 1991, the Division Chief informed appellant that he would be removed from the Federal service, effective May 20, 1991, for violation of the last chance agreement and for the instances of AWOL cited in the proposed removal letter. Appellant's attendance and job performance was satisfactory from April 22, 1991 when he returned to work, to May 20, 1991, the effective date of his removal. By letter of November 9, 1992, appellant's physician informed the agency that appellant had remained alcohol-free since April 22, 1991. Appellant testified that he thought he was under a valid physician's statement from February or March 1991 until April 22, 1991. He also testified that he felt he had not broken the last chance agreement.

The record indicates that at the time of appellant's removal, he was the only black employee in the Hazardous Storage Branch. The record also indicates that the Branch Chief had a history of making racially derogatory remarks in the workplace, both when he was a Warehouse Worker and after he was promoted to Branch Chief in November 1989. For example, prior to his promotion and at a time when there were there black employees in supervisory positions within the Division, the Branch Chief used a racially derogatory epithet when complaining to the Warehouse Supervisor (white) that black employees were "taking over." (Hearing Transcript (HT.) 12). The Warehouse Supervisor counseled him about the remark and reported the remark to his superior. About a year later, again prior to his promotion, the Branch Chief used the same racial epithet when referring to appellant. (HT. 13). Again, the supervisor counseled him about the remark and reported the remark to his superior. However, the Branch Chief continued to use offensive racially derogatory terms when describing black employees and supervisors. For example, the Branch Chief referred to the black supervisory officials as "Tootsie Roll" or "chocolate bunny." (HT. 34). After he was promoted, the Branch Chief repeatedly made derogatory racial comments. At various unspecified times after the proposed removal, the Branch Chief used a racially derogatory term when referring to appellant. For example, when appellant did not come to work, the Branch Chief told a Production Clerk that appellant was "a lazy [epithet]." (HT. 40). On one such occasion, the Clerk told the Branch Chief she thought appellant had an alcohol problem. According to the Clerk, the Branch Chief agreed but said it wasn't his concern, it was appellant's problem. The former Clerk testified that the Branch Chief would tease appellant about drinking Jack Daniels, asking "Oh, did you have too much Jack last night?"(HT. 30). The Branch Chief testified at the hearing but did not deny making any of these remarks. He testified that he did not take any adverse action towards appellant based on his "color." (HT. 58).

During the agency's investigation of appellant's complaint, appellant testified that he did not know of any other individual who had been treated more favorably than he had been treated regarding his removal. The Branch Chief testified regarding three other Branch employees who had attendance problems. According to the Branch Chief, he issued both Employee A (white) and Employee B (white) sick-leave-restriction letters. He also testified that Employee A participated in the EVADED Program following discipline for his first offense of AWOL and his attendance improved "to some extent." (HT. 71-72). The Branch Chief further testified that Employee B (white) did not have any AWOLs. The Branch Chief testified that Employee C (race not identified in the record) had attendance problems that improved after he enrolled in a treatment program for his alcoholism. One Branch employee testified when she returned from Desert Storm she was "shocked" to learn that appellant had been removed while Employee A was still working despite his leave problem. However, the employee admitted that she was not aware of appellant's AWOL offenses. (HT. 31, 36). The record does not contain copies of appellant's leave records or the leave records of Employees A, B and C.

On appeal, appellant contends that the Branch Chief hated black people, the Branch Chief repeatedly made derogatory remarks about black people, the Branch Chief and the Division Chief conspired against him, his counselor was not present when the last chance agreement was signed, his counselor could testify whether he was coherent at the last chance agreement meeting, and he could prove discrimination, harassment and conspiracy if he could meet with the EEOC. The agency did not file a response to appellant's appeal.

ANALYSIS AND FINDINGS

Racial Discrimination-Hostile Work Environment Claim
In Harris v. Forklift Systems, Inc., ____ U.S. ____, 114 S.Ct. 367, 370 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of the complaint's employment. EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3. The Court explained that an "objectively hostile or abusive work environment" is created when "a reasonable person would find [it] hostile or abusive" and the complainant subjectively perceives it as such. Harris at 370; EEOC Enforcement Guidance at 3.

Thereby, the Supreme Court set forth a "reasonable person" standard for assessing whether a working environment is objectively hostile or abusive. EEOC Enforcement Guidance at 6. In determining whether an objectively hostile or abusive work environment existed, the trier of fact should consider whether a reasonable person in the complainant's circumstances would have found the alleged behavior to be hostile or abusive. Id. Even if the harassing conduct produces no tangible effects, such as psychological injury, a complainant may assert a Title VII cause of action if the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their race, gender, religion, or national origin. Harris at 371, EEOC Enforcement Guidance at 3, 6. When a workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment, Title VII is violated. Harris at 370; EEOC Enforcement Guidance at 3.

To determine whether a work environment is objectively hostile or abusive, the trier of fact must consider all of the circumstances, including the following: the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. Harris at 371; EEOC Enforcement Guidance at 4, 5. While the trier of fact should consider all relevant factors, no single factor is required to establish a hostile or abusive work environment claim. Harris at 371; EEOC Enforcement Guidance at 6.

We find, for the reasons explained below, that appellant proved by a preponderance of the evidence that the agency subjected him to a hostile work environment based on his race beginning in November 1989, when the agency placed the Branch Chief in a position of authority over appellant, and ending in appellant's removal, effective May 20, 1991.

Prior to placing the Branch Chief in a position of authority over appellant, the agency, through its officials, including the Warehouse Supervisor and his superior, knew that the Branch Chief repeatedly made racially derogatory remarks in the workplace. Specifically, prior to his promotion, the Branch Chief had used a racially derogatory epithet when complaining to the Warehouse Supervisor that black employees were "taking over." The Branch Chief had used the same racial epithet when referring to appellant. The record indicates that despite being twice counseled about the inappropriateness of these racially derogatory comments by the Warehouse Supervisor, the Branch Chief continued to use offensive racially derogatory terms when describing black employees and supervisors, including referring to the black supervisory officials as "Tootsie Roll" and "chocolate bunny." Despite the agency's knowledge of the Branch Chief's open and notorious hostility toward black employees and supervisors, the agency inexplicably placed the Branch Chief in a position of authority over appellant, the only black employee in an otherwise all-white branch.

Given all of these circumstances, we find that the agency created a situation which a reasonable person in appellant's position would have found to be both hostile and intimidating because of his race. We conclude that the agency subjected appellant to a workplace permeated with racial ridicule and insult which was sufficiently severe and pervasive to create an objectively hostile work environment which appellant, in fact, found to be hostile.

To ensure that the racially hostile work environment discrimination ceases, and does not recur, the Commission orders the agency to strongly consider disciplining the Branch Chief and to provide appropriate training to the Branch Chief and to all supervisory and management personnel employed in the Hazardous Supply Division, Directorate of Supply, Ammunition and Transportation, at Letterkenny Army Depot in Chambersburg, Pennsylvania, who knew or should have known about the Branch Chief's blatant racism but took no steps to bring about effective corrective action.

Alleged Racial Discrimination-Removal
The analysis of appellant's allegation that he was removed from Federal employment due to his race is complex due to the fact that the removal notice indicated that appellant was being removed for violation of the last chance agreement and for the instances of AWOL cited in the proposed removal letter. The proposed removal notice was issued by the Branch Chief. As indicated above, the Branch Chief's continued display of racial animus over a period of at least five years, despite counseling by agency officials, constitutes more than "stray" remarks. [FN2] Such a course of conduct by the Branch Chief indicated a depth of racial animus that flouted restraint. Moreover, the record indicates that the Branch Chief's racial animus was not just "discrimination in the air," but rather that it was discrimination "brought to ground" and visited upon appellant. See EEOC Notice No. 915.002 (July 14, 1992), Revised Enforcement Guidance on Recent Developments in Disparate Treatment Theory at III.A.

Based on the entirety of the record evidence, but especially on the depth of the Branch Chief's racial animus and the persistence of his view that appellant's absences were attributable to his being black rather than to his alcoholism, we conclude that race was a motivating factor in the Branch Chief's issuing appellant a proposed removal notice for being absent without official leave. See EEOC Revised Enforcement Guidance, Section III.A., n.8 (a link between the evidence of bias and the challenged employment action can be shown if the biased statements were made by the decision maker or one involved in the decision, at or around the time that the decision was made, even if the biased remarks were not specifically related to the particular employment decision at issue).

The removal action at issue in this case occurred prior to the amendments to Title VII which were enacted by the Civil Rights Act of 1991 and which became effective on November 21, 1991. Therefore, we apply the burdens of proof set forth in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) to appellant's removal allegation. In the Price Waterhouse case, the Supreme Court indicated that where there is sufficient evidence in the record that both a legitimate reason and a discriminatory reason played a motivating part in the employment action at issue, that is, in a mixed-motives case, an employer may avoid liability by proving by a preponderance of the evidence that it would have made the same decision in the absence of the unlawful motive. [FN3] Price Waterhouse at 250 (Brennan, J., plurality opinion) (the burden of proof shifts to the employer when an impermissible motive played a motivating part in the adverse employment decision). To satisfy this burden of proof, the agency must prove that a legitimate and sufficient reason for the decision actually motivated the deciding official at the time of the removal. The agency may not prevail in a mixed-motives case by offering a legitimate and sufficient reason for its decision if that reason did not actually motivate the agency at the time of the decision. Nor can the agency meet its burden merely by showing that the removal decision was motivated only in part by a legitimate reason. In other words, the agency must prove that its legitimate reason, standing alone, would have induced it to remove appellant. Price Waterhouse at 252 (Brennan, J., plurality opinion). See EEOC Notice 915,002 (March 7, 1991), Policy Guidance on Recent Developments in Disparate Treatment Theory, Section III. After reviewing the entire record, we conclude that the agency satisfied its burden of proof for the reasons discussed below.

The removal decision signed by the Division chief indicated that the agency removed appellant based on his failure to comply with the terms of the last chance agreement and on the absences cited in the proposed removal notice. However, the record evidence as a whole indicates that the Division Chief removed appellant based on his failure to comply with the terms of the last chance agreement. First, notwithstanding the Branch Chief's racial animus, agency officials, including the Division Chief, had reason to believe that appellant had a disability, alcoholism, due to his continuing attendance problems and his arrest for public drunkenness on March 11, 1991. Moreover, once informed of appellant's alcoholism problem, the agency officials properly offered appellant a firm choice between participation in a treatment program and removal. Appellant signed a last chance agreement describing the conditions he would have to meet in order to retain his job, but he failed to comply with the terms of the agreement. On April 22, 1991, the Deciding Official notified MER to proceed with the removal based on appellant's failure to comply with the terms of the last chance agreement. Apparently, MER officials added the AWOL absences cited in the proposed removal notice to the removal decision. There also is no evidence in the record that the Deciding Official was motivated by racial bias or that he conspired with the Branch Chief to remove appellant based on his race. [FN4] Based on all of the above, we conclude that the agency proved by a preponderance of the evidence that appellant's violation of the last chance agreement, standing alone, would have induced the agency to remove appellant from the Federal service. Accordingly, we find that appellant did not prove that the agency violated Title VII when it removed appellant from the Federal service.

Alleged Discrimination Based on Disability
In order to establish a prima facie case of disability discrimination, appellant must show that he is a qualified person with a disability and that either the agency treated him less favorably than individuals not within his protected group or it failed to make a plausible reasonable accommodation to his disability. Appellant also must show that there is a nexus or causal relationship between the disabling condition and the challenged agency action(s). James E. Mackey v. United States Postal Service, EEOC Appeal No. 01931771 (April 28, 1994). A qualified person with a disability is one who, with or without reasonable accommodation, can perform the essential functions of the position in question. 29 C.F.R. §1614.203(a)(6).[FN5] A person with a disability is a person who (1) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (2) has a record of such an impairment, or (3) is regarded as having such an impairment. 29 C.F.R. §1614.203(a)(1).[FN6]

It is undisputed that appellant was a person with a disability (alcoholism). There is no evidence in the record on the issue of whether appellant's job duties requiring the use of a motor vehicle were essential job functions of the Warehouse Worker (Forklift Operator) position. Moreover, the record indicates that the agency permitted appellant to remain in his Forklift Operator position, operating forklifts, after it learned of his license suspension/revocation. Given this fact, we assume for purposes of this analysis that appellant was a qualified person with a disability because he performed the essential functions of his Warehouse Worker (Forklift Operator) position while he was at work and, up to and including February 15, 1991, there arguably was a plausible reason to believe that his attendance deficiencies could be accommodated by the agency's offer of a "firm choice" between treatment and removal. The purpose of offering an alcoholic employee a firm choice between treatment and discipline has been to impress upon the employee that a problem of alcoholism exists and that a failure to seek treatment for it would result in loss of employment. Andre L. Beck v. Department of the Army, EEOC Appeal No. 01924140 (February 25, 1994).

The record indicates that there was a nexus or causal relationship between appellant's alcoholism and the agency's attempts to persuade him to participate in and to successfully complete a treatment program for his alcoholism. We find, however, that the agency's attempts to encourage appellant to seek treatment for his alcoholism, given his attendance problems, did not rise to the level of treatment so severe or pervasive as to constitute a hostile work environment based on his disability. The Commission particularly observes that when offering appellant a firm choice between treatment and his removal in April 1991, the agency was fulfilling a legal obligation, rather than engaging in harassment based on appellant's disability.

As to appellant's removal, we find that appellant failed to establish a prima facie case of disability discrimination because there is no evidence in the record that there was a nexus or casual relationship between appellant's alcoholism and his failure to comply with the terms of the last chance agreement. Specifically, there is no evidence in the record that because of his alcoholism appellant failed to report to work during the week of April 15, 1991, to timely request leave for that week, and to subsequently submit adequate medical documentation for his absence. See Mackey, supra.

CONCLUSION

Based upon a thorough review of the record, and for the foregoing reasons, it is the decision of the Equal Employment Opportunity Commission to AFFIRM IN PART and to REVERSE IN PART the agency's final decision of June 2, 1993. To remedy the hostile work environment discrimination based on race, the Commission orders the agency to take the actions set forth in the ORDER below.

ORDER

The agency is ORDERED to take the following remedial action to ensure that the racially hostile work environment discrimination ceases and does not recur:
(1) The agency shall strongly consider disciplining the Branch Chief;
(2) The agency shall provide appropriate training to the Branch Chief regarding his responsibility to insure a workplace free of discrimination based on race for all employees who work under his authority, the types of conduct which constitute discrimination based on race, and the actions the agency will take if he does not insure a workplace free of discrimination based on race for the employees who work under his authority.
(3) The agency shall provide appropriate training regarding their responsibility to ensure a workplace free of discrimination based on race for all employees to all supervisory and management personnel employed in the Hazardous Supply Division, Directorate of Supply, Ammunition and Transportation, at Letterkenny Army Depot in Chambersburg, Pennsylvania, who knew or should have known about the Branch Chief's blatant racism but took no steps to bring about effective corrective action by the appropriate agency official.
(4) The agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented.

POSTING ORDER (G1092)

The agency is ORDERED to post at its Letterkenny Army Depot in Chambersburg, Pennsylvania, 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 (H1092)

If appellant 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 (K0595)

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 appellant. If the agency does not comply with the Commission's order, the appellant may petition the Commission for enforcement of the order. 29 C.F.R. §1614.503 (a). The appellant 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. §§ 1614.408, 1614.409, and 1614.503 (g). Alternatively, the appellant 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. §§ 1614.408 and 1614.409. 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) (Supp. V 1993). If the appellant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See29 C.F.R. §1614.410.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this case if the appellant or the agency submits a written request containing arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law, regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUSTBEFILEDWITHINTHIRTY (30) CALEN-DARDAYS of the date you receive this decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive a timely request to reconsider filed by another party. Any argument in opposition to the request to reconsider or cross request to reconsider MUST be submitted to the Commission and to the requesting party WITHINTWENTY (20) CALENDARDAYS of the date you receive the request to reconsider. See 29 C.F.R. §1614.407. All requests and arguments must bear proof of postmark and 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 filed on the date it is received by the Commission.

Failure to file within the time period will result in dismissal of your request for reconsideration as untimely. If extenuating circumstances have prevented the timely filing of a request for reconsideration, a written statement setting forth the circumstances which caused the delay and 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).

RIGHT TO FILE A CIVIL ACTION (R0993)

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. It is the position of the Commission that 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. You should be aware, however, that courts in some jurisdictions have interpreted the Civil Rights Act of 1991 in a manner suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this decision. To ensure that your civil action is considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this decision or to consult an attorney concerning the applicable time period in the jurisdiction in which your action would be filed. 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 (Z1092)

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:

Frances M. Hart
Executive Officer
Executive Secretariat

FN1. The Merit Systems Protection Board declined jurisdiction of appellant's appeal because appellant knowingly waived his right to seek Board review of his removal in the last chance agreement, which provided that he "forfeit[ed] any and all rights to grieve, appeal, file a complaint, or otherwise contest actions taken in relation to the conditions of this agreement, or any adverse action resulting from his failure to fulfill the conditions of this agreement."However, the Commission has held that one may not waive prospective rights. See, e.q., Gary J. Martinez v. Army, EEOC Request No. 05920550 (August 27, 1992). Accordingly, we find that we retain jurisdiction over this matter.

FN2. See Price Waterhouse v. Hopkins, 490 U.S. 228, 277 (May 1, 1989) (O'Connor, J., concurring in the judgment) (stray remarks in the workplace cannot justify requiring the employer to prove that its decision was based on legitimate criteria).

FN3. Section 107 of the Civil Rights Act of 1991, Publ. L. No. 102-166, 105 Stat. 1071, added section 703(m) to Title VII to clarify that a Title VII violation is established "when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated that practice."

FN4. In response to appellant's argument that he could prove his case if allowed to meet with EEOC, we note that he had an opportunity to present evidence to the EEOC at the hearing before the EEOC AJ.

FN5. The corresponding regulation in 29 C.F.R. Part 1613 is 29 C.F.R. § 1613.702(f).

FN6. The corresponding regulation in 29 C.F.R. Part 1613 is 29 C.F.R. § 1613.702(a).

NOTICE TO EMPLOYEES POSTED BY ORDER OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

An Agency of the United States Government

This Notice is posted pursuant to an Order by the United States Equal Employment Opportunity Commission dated ________________________________________ which found that a violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq., has occurred at this facility.

Federal law requires that there be no discrimination against any employee or applicant for employment because of the person's RACE, COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL DISABILITY with respect to hiring, firing, promotion, compensation, or other terms, conditions or privileges of employment. The [agency] reaffirms its commitment to comply with these statutory provisions.

The Department of the Army, Letterkenny Army Depot, Chambersburg, Pennsylvania, supports and will comply with such Federal law and will not take action against individuals because they have exercised their rights under law.

The Department of the Army, Letterkenny Army Depot, is taking all necessary steps to ensure that the racially hostile work environment discrimination ceases and will not recur. The Department of the Army, Letterkenny Army Depot, will ensure that officials responsible for personnel decisions and terms and conditions of employment will abide by the requirements of all Federal equal employment opportunity laws.

The Department of the Army, Letterkenny Army Depot, will not in any manner restrain, interfere, coerce, or retaliate against any individual who exercises his or her right to oppose practices made unlawful by, or who participates in proceedings pursuant to, Federal equal employment opportunity law.