Sonia DaCosta, ) Complainant, ) ) v. ) Appeal No. 01995992 ) Hearing Nos. 100-95-7551X Richard W. Riley, ) 100-97-7065X Secretary, ) Agency No. ED94610002 Department of Education, ) Agency. ) ) DECISION On August 2, 1999, the complainant filed an appeal with this Commission from the agency's failure to have her July 11, 1994 complaint investigated by an independent investigator, consistent with remand instructions by EEOC administrative judges on August 2, 1995, and December 1, 1997.<1> The Commission accepts the complainant's appeal in accordance with EEOC Order No. 960, as amended. ISSUES PRESENTED The issues presented in this appeal are (1) whether the record demonstrates that the agency has complied with EEOC Regulation 29 C.F.R. § 1614.108(e); (2) whether the agency has shown good cause for its failure to provide for the timely investigation of the complainant's complaint, and (3) whether claim 2 of the complainant's complaint states a claim. BACKGROUND When the matters at issue arose, the complainant was employed as an Equal Employment Specialist, GS-260-12, in the agency's Office of Human Resources and Administration, Administrator for Management Services, Equal Employment Opportunity Staff, Complaints Analysis and Conciliation Unit. On December 30, 1992, the complainant requested a desk audit because the agency was purportedly assigning her GS-13 duties while paying her GS-12 level wages. On March 29, 1994, the complainant received the results of the desk audit; she contacted an EEO counselor soon thereafter. On May 22, 1994, the complainant began employment as a GS-13 Equal Employment Specialist with another Federal agency. On July 14, 1994, the complainant filed a formal EEO complaint wherein she alleged that based on her national origin (Hispanic) and in retaliation for her prior EEO activity, (1) on March 25, 1994, the agency declined to upgrade her position and, (2) on May 4, 1994, the agency subjected her to a hostile work environment due to the receipt of a May 2, 1994, letter from an independent contractor. The complainant named her supervisor and the author of the May 2, 1994 letter as the responsible individuals. To remedy the alleged discrimination, the complainant sought payment for the GS-13 duties she allegedly had performed from December 1, 1992 through May 21, 1994; a letter of apology, and compensatory damages. According to the EEO Counselor's Report, the complainant alleged that her supervisor failed to support her upgrade request when meeting with the classifier, even though she performed all of the grade-level controlling duties performed by Employee A, a GS-13 Equal Employment Specialist. According to the March 25, 1994 desk audit result memorandum, the audit did not reveal that the complainant continually performed higher graded duties with such frequency as to affect the grade of her position. For example, the memorandum found that the complainant's responsibility for revising agency regulations consumed less than 20% of the complainant's time. The memorandum indicated, however, that the complainant had been assigned duties which appeared to have similarities to those assigned to the GS-13 position held by Employee A, including functions related to the intake process, the resolution of different types of complaints, sexual harassment assignments, the provision of sexual harassment training, investigative duties, and the writing of some procedural guidance for the revised Part 1614 regulations. The memorandum concluded that there were a number of position management problems relative to the classification of the complainant's position including the apparent overlap of duties and responsibilities and possible grade impact of individual assignments. Of relevance to the instant appeal, the classifier indicated at page 6 of the “Evaluation Statement”: Incumbent certifies the completeness of records and evaluates the contractor's work. (EEO investigations are primarily performed by a contractor.) The record indicates that the independent contractor named in allegation 2 of the complainant's complaint had been tasked with investigating the EEO complaint of Employee B (agency complaint number ED-9382000), filed on September 7, 1993. The contractor's May 2, 1994 letter criticized the investigation plan that had been prepared by the complainant. The letter stated, among other things, that two incidents of alleged sexual harassment had been ignored: a co-worker's walking into Employee B and allegedly touching her private parts and another incident involving alleged remarks by co-workers with sexual innuendo. According to the EEO Counselor's Report, the letter was discussed at a May 4, 1994 unit meeting where the complainant believed she was harassed by her supervisor because she did not have a “filthy” mind. On January 30, 1995, the complainant wrote the agency's EEO Office requesting a hearing before an EEOC Administrative Judge. The letter pointed out that the agency had not yet issued her an acceptance or dismissal letter or a notice regarding the investigation of her complaint. On February 23, 1995, the complainant informed the EEOC's Office of Federal Operations (OFO) that the agency had not responded to her complaint. Thereafter, OFO wrote to the agency and, in response, the agency sent a hearing request to the EEOC's Washington Field Office (WFO) on April 5, 1995. Therein, the agency pointed out that because the complainant's allegations involved the EEO Office, “her complaint is considered as a conflict of interest matter ....” The complainant's complaint was docketed by the EEOC's WFO with hearing number 100-95-7551X. By letter of August 2, 1995, Administrative Judge 1 remanded the complaint to the agency for investigation. The letter indicated that both parties had agreed to the remand and had stipulated that the investigation would be completed within 90 days. Administrative Judge 1 recommended that an independent investigator be appointed due to the acknowledged conflict of interest. On October 27, 1995, the agency's EEO Office wrote the Government Printing Office (GPO) as a follow-up to an October 19, 1995 conversation. The letter indicated that the agency was seeking another Federal agency to assume the processing of two separate conflict of interests complaints: the complainant's complainant and the complaint of Employee C, ED-9337000. The letter indicated that it was the agency's understanding that the GPO might be able to handle both cases. By letter of August 8, 1996, the agency's EEO Office notified the complainant that it again had been contacted by EEOC's OFO regarding her complaint. The letter indicated that it had informed the EEOC that it was seeking another Federal agency to process her conflict of interest complaint, and that at present the EEO Office was striving to establish an interagency agreement by which to delegate specific EEO authority to GPO to process the complaint. On September 20, 1996, the complainant again requested a hearing, noting that she had cooperated with the agency when it requested a 90-day extension for the investigation, but that no action had yet been taken on her complaint. The agency forwarded the second hearing request to EEOC's WFO, where it was docketed as hearing number 100-97-7065X on October 21, 1996. The acknowledgment letter informed the parties that due to the large volume of cases, the matter had not yet been assigned to an administrative judge. On August 13, 1997, the complainant requested that Administrative Judge 2 order the agency to pay discovery costs since they had expended no money to conduct the investigation of her complaint. Administrative Judge 2 responded to the parties that EEOC procedures did not provide for shifting the costs during the hearing process, but that the complainant would be entitled to such costs if she prevailed on her complaint. Administrative Judge 2 also requested that the agency advise him of the status of the investigative report. The agency responded that no investigative report had been prepared because, prior to the agency's obtaining the assistance of another agency, the complainant had requested a hearing. On October 9, 1997, the complainant wrote Administrative Judge 2 that Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (October 22, 1992) (hereinafter referred to as EEO MD-110 (1992), Chapter 6, Section III.F. at 6-16, gave administrative judges the authority to require the agency to pay any costs incurred by a complainant in taking depositions or in any other form of discovery when an agency fails to timely complete its investigation. The complainant represented that she had not incurred any additional expenses for discovery because Administrative Judge 2's reply of August 13, 1997 had discouraged her from doing so. The complainant further informed Administrative Judge 2 that it seemed pointless to pursue her complaint before him because she believed he had characterized her complaint as a “nuisance” during the prehearing conference. On October 20, 1997, Administrative Judge 2 wrote the parties that he was researching the question of cost shifting and would provide further guidance soon. He also informed the parties that the agency's characterization of its settlement offer as a “nuisance settlement” did not reflect his view of the merits of the complainant's complaint allegations. Administrative Judge 2 further pointed out that the complainant had not responded to the agency's Motion for Summary Judgment. By letter of November 9, 1997, the complainant notified Administrative Judge 2 and the agency that she was requesting a final agency decision from the agency. On December 1, 1997, Administrative Judge 2 remanded the complaint to the agency for final agency decision per the complainant's request. Administrative Judge 2 reminded the agency that because no investigation had yet been undertaken, the agency was responsible for collecting sufficient information to render a final decision. Administrative Judge 2 instructed the agency that to avoid a conflict of interest, an independent investigator should conduct any fact finding. Administrative Judge 2 indicated that agency counsel had informed him that the agency was entering into an interagency agreement for that purpose. Administrative Judge 2 also advised the agency that because the complainant was a former employee of the EEO Office, a conflict of interest would arise if the EEO Office were to process the merits of the complaint. Administrative Judge 2 instructed the agency that, therefore, someone outside the EEO Office should render the final agency decision. On April 21, 1999, the agency's EEO Office notified the complainant that an investigation would be conducted by a General Service Administration sole source contractor. On June 9, 1999, the agency's EEO Office notified the complainant that there would be a “short” delay in the start of the investigation. On June 29, 1999, the agency's EEO Office officially acknowledged the receipt of the complainant's formal complaint and informed the complainant of her right to an investigation within 180 days of the filing of her complaint and the right to appeal any final agency decision on her complaint. On July 29, 1999, the agency's EEO Office sent the complainant a letter enclosing a set of interrogatories to “expedite” the issuance of a final decision. The agency's EEO Office requested that the complainant return her answers with a signed and notarized certification of truthfulness within fifteen days of her receipt of the letter. On August 2, 1999, the complainant filed the instant appeal. The complainant indicates that for a second time the agency has ignored the instructions of an Administrative Judge to have the investigation conducted by a neutral and impartial party. The complainant contends that the manner in which the agency has engaged in delays for five years and ignored two remands from the EEOC is tantamount to a final decision. In support of her appeal, the complainant submits copies of correspondence she wrote and received in her repeated attempts to have the agency process her complaint in accordance with the requirements of 29 C.F.R. Part 1614. For example, on August 23, 1996, the complainant wrote to her Senator and expressed her concern that many of her witnesses had already left the EEO Office and that the supervisor who allegedly discriminated against her planned to retire that year. In response to the complainant's appeal, the agency argues that it has not ignored the EEOC's guidance, and that the record documents its efforts to have the complainant's complaint investigated by a neutral and impartial party. Specifically, the agency argues that since 1995, it has attempted to have another agency investigate the complainant's complaint. In support of its representation, the agency relies on a description of its efforts in 1996 and 1997 to effect an interagency agreement to process the complainant's complaint. The description indicates, among other things, that the agency's EEO Office received a sample interagency agreement from the EEOC's OFO on June 24, 1996, and again on February 28, 1997. The agency describes the process of drafting the interagency agreement as a “tedious and long process.” The agency also contends that the agency can now investigate the complainant's complaint because a conflict of interest no longer exists. The agency argues that the individuals named in the complainant's complaint are no longer employed in the agency's EEO Office and that a new Director has been appointed. The agency requests that the Commission find that a conflict of interest no longer exists and that the complainant be ordered to respond to the interrogatories it sent her. On November 23, 1999, the Commission's OFO issued to the parties a “Notice to Show Good Cause Why Sanctions Should Not Be Imposed.” The Notice described the agency's duty to investigate complaints of discrimination in accordance with 29 C.F.R. § 1614.108(e), referenced the two prior Commission remands of the complainant's complaint to the agency for investigation, and set forth the Commission's authority to order sanctions. The Notice ordered the agency to show good cause why the Commission should not sanction the agency for its failure to comply with EEOC Regulation 29 C.F.R. § 1614.108(e) by issuing a decision on the complaint that is fully or partially in favor of the complainant; and/or by taking such other actions as the Commission may deem appropriate. The agency filed a timely response to the Notice wherein it reiterates prior factual representations and contends that it has attempted to investigate the complainant's complaint in good faith, consistent with the instructions of the administrative judges. The agency also contends that it should not be sanctioned because it has not acted in bad faith, because it attempted to negotiate an interagency agreement to have the complaint investigated; the agency currently seeks to investigate the complaint; and no conflict of interest now exists that would prevent the agency from conducting a “supplemental” investigation. To support its contentions, the agency submits copies of documents already in the record and a declaration made “under penalty of oath” by the Complaints Team Leader of the agency's Equal Opportunity Group. The declarant indicates, without explanation, that an interagency agreement could not be effected. The declarant also represents that the complainant's former supervisor and one of the employees who attended the May 4, 1994 unit meeting no longer work for the agency. The declarant further opines that a conflict of interest does not currently exist since the current EEO reviewers were not agency employees when the alleged discriminatory actions took place. ANALYSIS AND FINDINGS Violation of EEOC's Part 1614 Regulation EEOC Regulation 29 C.F.R. § 1614.108(e) requires agencies to complete an investigation of a formal EEO complaint within 180 days of the filing of the complaint unless the parties agree in writing to extend the period for not more than an additional 90 days. The complainant did not agree to an extension during the regulatory 180 day period; therefore the agency was required to complete the investigation of the complainant's complaint on or before January 10, 1995. The record demonstrates, and the agency does not dispute, that no investigation was ever begun, much less completed, within the 180-day period. Despite the complainant's continuous and diligent efforts to have her complaint properly investigated, it was not until July 29, 1999, more than five years after the filing of the complainant's complaint, that the agency's EEO Office sent the complainant a set of interrogatories to answer and it did so in a clear disregard of an Administrative Judge's latest instructions. Accordingly, the Commission finds that the agency failed to conduct a timely investigation of the complainant's complaint as required by EEOC Regulation 29 C.F.R. Part 1614 and the Administrative Judge 's instructions. Imposition of Sanctions The Commission has the inherent power to protect its administrative process from abuse by either party. Buren v. Unites States Postal Service, EEOC Request No. 05850299 (November 18, 1988). The procedures contained in the Commission's Regulations are no more or no less than the necessary means to eliminate unlawful employment discrimination in Federal employment. Id. Therefore, the Commission must insure that agencies, as well as complainants, abide by its regulations. The Commission has exercised its inherent authority to enforce its Part 1614 Regulations by ordering sanctions in response to various violations. See, e.g., Epstein v. Department of Health and Human Services, EEOC Request No. 05970671 (July 2, 1998) (upholding an award of attorney's fees and costs incurred in establishing a breach of a settlement agreement where the agency's attorney misrepresented her authority to enter into a specific agreement); Terrell v. Department of Health and Human Services, EEOC Request No. 04950018 (November 7, 1996) (awarding attorney's fees and costs for filing a petition for enforcement following the agency's failure to comply with the Commission's order to conduct a supplemental investigation within 90 days); Edwards v. United States Postal Service, EEOC Request No. 05950708 (October 31, 1996) (Commission has the authority to remedy a violation of 29 C.F.R. § 1614.605(b)(2) by awarding official time without a finding of discrimination); and Stull v. Department of Justice, EEOC Appeal No. 01942827 (June 15, 1995) (upholding an award of attorney's fees and costs incurred in an attempt to have an adverse inference drawn where the agency failed to comply with an administrative judge's order to produce documents). In addition to the Commission's inherent authority to enforce its Part 1614 Regulations, EEOC Regulation 29 C.F.R. § 1614.108(c)(3) authorizes administrative judges and the Commission on appeal to take one of four specified actions, or any such other actions deemed appropriate, where an agency or its employees fails without good cause shown to respond fully and in timely fashion to an investigator's requests for documents, records, comparative data, statistics, affidavits, or the attendance of witnesses. EEOC Regulation 29 C.F.R. § 1614.109(d)(3) provides sanctions for a party's failure to respond fully and timely to requests for evidence in the hearing context. 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred to as 29 C.F.R. § 1614.404(c)) provides sanctions for a party's failure to respond to the Commission's requests for the submission of evidence following an appeal. The Commission finds in the instant case that the agency has successfully prevented an independent investigator from making evidentiary requests by failing to assign the matter to an independent investigator as required by EEOC Regulation 29 C.F.R. § 1614.102(a)(2).<2> However, the agency's inaction does not nullify the Commission's inherent authority to sanction the agency's failure to fulfill its duty to investigate, or to otherwise provide for the prompt, fair, and impartial investigation of the complainant's complaint, within 180 days of the date she filed the complaint. The agency contends that the record documents its attempts to have the complainant's complaint investigated by a neutral and impartial party. However, the agency has not provided any documentation or explanation for its failure to investigate the complainant's complaint within 180 days of its filing, that is, on or before January 10, 1995. In fact, the only agency attempts to initiate an investigation occurred in October 1995 and in 1996 and 1997, months and years after the time limitation for completing the investigation had expired. The agency was never ignorant of its responsibility to have the complaint investigated, but it merely initiated attempts to do so, and all the ineffective attempts were by the same office which allegedly had engaged in discrimination. The agency's conduct is precisely the reason the EEOC expects this type of complaint to be investigated by neutral third parties. Given the agency's failure to investigate the complainant's complaint within 180 days as required by Regulation, and the agency's failure to provide any explanation for its non-compliance, the Commission finds that the imposition of a sanction is warranted in this case. Choice of an Appropriate Sanction In determining the nature of the sanction to be imposed, the Commission has considered the agency's contention that it did not ignore the EEOC's guidance and instructions that the complainant's complaint should be investigated by a neutral and impartial party. During the time period in question, July 14, 1994 through January 10, 1995, the agency should have been guided by MD-110 (1992), Chapter 5, Section V.C.1 and 2 at 5-5 which provided in pertinent part: The person assigned to investigate shall not occupy a position in the agency that is directly or indirectly under the jurisdiction of the head of that part of the agency in which the complaint arose. The investigator, if a contract investigator, shall not have been hired by or be obligated to the person(s) involved in the matter(s) giving rise to the complaint. For example, where the contract monitor of EEO investigation contracts is alleged to have been involved in discriminatory activity, the use of the usual contract investigator would create an apparent bias because there is at best the appearance that the contract investigator could not be impartial. Based on this Commission guidance, the person assigned to investigate the complainant's complaint could not have occupied a position in the agency that was directly or indirectly under the jurisdiction of the head of that part of the agency in which the complaint arose. It appears from the audit “Evaluation Statement” that this guidance should have presented no difficulty for the agency because the agency's EEO investigations were primarily performed by independent contractors. Yet, there is no indication in the record that the agency even considered using a contract investigator to investigate the complainant's complaint prior to 1999 when, on April 21, 1999, the agency's EEO Office notified the complainant that an investigation would be conducted by a sole source contractor. In addition, to the extent that the agency was concerned with the potential for a conflict of interest to occur if the agency's EEO Office monitored the contract investigator for the complainant's complaint, the responsibility for contract management and award could have been transferred to another part of the agency with experience in contract management and awards. The Commission finds that the agency did not follow the guidance set forth in MD-110 (1992), as described above, but instead, allowed the agency's EEO Office with an acknowledged conflict of interest to retain responsibility for the processing of the complainant's complaint. The results are evident: (1) a period of inactivity from July 14, 1994 to April 5, 1995; (2) followed after the August 2, 1995 Remand Order, by what the agency describes as the “tedious and long process” of drafting an interagency agreement; (3) followed by another period of inactivity from December 1, 1997 to April 21, 1999. The agency acknowledges that it has not executed an interagency agreement. There also is no evidence in the record that the agency made any additional efforts to do so following Administrative Judge 2's remand Order of December 1, 1997. The agency requests the Commission to find that a conflict of interest no longer exists, and to order the complainant to respond to the interrogatories it sent her. These requests assume that an agency has an option under 29 C.F.R. Part 1614 to delay the investigation of a complaint until a potential conflict of interest is resolved through resignation, retirement, or death. No such option exists under Part 1614. Moreover, such an option would defeat the purpose of the Regulation, i.e., to eliminate unlawful employment discrimination in Federal employment. The Commission observes that in such a situation the agency would be able to argue, as the agency successfully did in Davis v. Department of Education, EEOC Request No. 05950147 (August 1, 1996), that when a witness no longer works for the agency and fails to appear at a hearing, the failure to attend can not be deemed to be a refusal by the agency to submit evidence. Indeed, the agency has informed the Commission that the supervisor who allegedly discriminated and retaliated against the complainant in this case now no longer works for the agency. Finally, the agency contends that the agency should not be sanctioned because the agency has not acted in bad faith. The legal issue to be resolved is not whether the agency acted in bad faith, but rather, whether the agency has shown good cause for its failure to have the complainant's complaint timely investigated by an impartial investigator as required by EEOC Regulation 29 C.F.R. § 1614.102(a)(2), and § 1614.108(e). See Jackman v. Housing and Urban Development, EEOC Request No. 05970011 (January 16, 1998); Stull, supra; and 29 C.F.R. § 1614.109(d)(3), and § 1614.404(c). The bad faith standard was applicable under the Commission's prior Regulation, 29 C.F.R. Part 1613, as set forth in 29 C.F.R. § 1613.218(e). The Commission finds that the agency has not shown any reason, much less than good cause, for its failure to comply with either the Administrative Judges' instructions or EEOC Regulation 29 C.F.R. § 1614.102(a)(2), and § 1614.108(e) in this case. However, even under the bad faith standard advocated by the agency, the agency's actions speak for themselves. The agency had an opportunity and the responsibility to investigate the complainant's complaint in 1994, but it failed to do so. On August 2, 1995, Administrative Judge 1 remanded the complaint to the agency based on a stipulation by the agency that the investigation would be completed within ninety (90) days. No investigation was conducted during the ninety-day period. The complainant expressed concern to her Senator in 1996, that many of her witnesses had already left the EEO Office and that the supervisor who allegedly discriminated against her planned to retire that year. Nevertheless, no investigation was conducted. On December 1, 1997, Administrative Judge 2 remanded the complaint to the agency for investigation by an independent investigator and the issuance of a final agency decision in response to the complainant's request. The agency was required by EEOC Regulation 29 C.F.R. § 1614.110 to issue a final decision within 60 days of the complainant's request. Again, no investigation was conducted following the remand. The agency waited more than sixteen months to notify the complainant that an investigation would be conducted by a sole source contractor. Again, no such investigation was conducted. On July 29, 1999, the agency, not the required independent contractor, sent the complainant a set of interrogatories to “expedite” the issuance of a final agency decision on her complaint. However, to this day the record does not contain any indication that the agency has requested an affidavit or answers to interrogatories from the supervisor or from any other employees who had personal knowledge of the duties the complainant and the comparative employee, Employee A, performed from December 1992 through May 21, 1994, and the percentage of time they each spent on GS-13 level duties. The Commission can only conclude from the agency's course of conduct in this case that the agency's EEO Office negligently and intentionally delayed the investigation of the complainant's complaint because a timely investigation by an independent investigator would have shown that the agency discriminated against the complainant based on her national origin and in retaliation for her prior EEO activity. The agency's feeble attempts to explain its dilatory behavior can not reasonably justify its inability to have the complaint fully investigated years earlier, as prescribed by the regulations and as instructed by EEOC's officials. Given the circumstances present in this case, the Commission finds that the appropriate sanction for the agency's failure to process the complainant's complaint in accordance with the Commission's Part 1614 Regulation is to issue a decision partially in favor of the complainant. See 29 C.F.R. § 1614.108(c)(3)(i). Specifically, the Commission finds that a timely and impartial investigation would have shown that the agency required the complainant to perform the work of a GS-13 Equal Employment Specialist for GS-12 pay from December 1, 1992 through May 21, 1994, while paying the comparative employee GS-13 level pay for the performance of similar duties, because of her national origin and in retaliation for her prior EEO activity. To remedy the discrimination, the Commission orders the agency to award the complainant the additional back pay, interest on back pay, and benefits she would have received during that period of time if the agency had not discriminated and retaliated against her. The Commission also orders the agency to conduct a supplemental investigation to determine whether the complainant is entitled to the compensatory damages which she requested in her complaint. The agency shall afford the complainant on remand an opportunity to establish a causal relationship between the payment of GS-12 wages for GS-13 work and any pecuniary or non-pecuniary losses. See West v. Gibson, 119 S. Ct. 1906 (1999). The Commission issues a decision partially, but not totally, in favor of the complainant only because the Commission finds, for the reasons set forth below, that allegation 2 of the complainant's complaint fails to state a claim under Part 1614. Allegation 2 Where an alleged claim does not challenge an agency action or inaction regarding hiring, termination, compensation or any other specific term, condition, or privilege of employment, the alleged claim may still state a claim under Part 1614 if the complaint allegations are sufficient to state a hostile or abusive environment claim. Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997), citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993) (harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant's employment). The Commission finds that even if proven true, the facts alleged regarding the May 2, 1994 letter and the May 4, 1994 meeting do not indicate that the complainant may have been subjected to harassment that was sufficiently severe or pervasive to alter the conditions of her employment. Accordingly, the Commission finds that the complainant's complaint does not state a claim under 29 C.F.R. Part 1614. See Phillips v. Department of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996) (allegations that the supervisor had "verbally attacked" the complainant on one occasion, attempted to charge him with AWOL, and disagreed with the time the complainant entered into a sign-in log, were insufficient to state a harassment claim); Backo v. United States Postal Service, EEOC Request No. 05960227 (June 10, 1996) (a supervisor's remarks on several occasions, unaccompanied by any concrete action, were not sufficient to state a claim); and Miller v. United States Postal Service, EEOC Request No. 05941016 (June 2, 1995) (an oral admonishment was not sufficient to state a hostile work environment claim). CONCLUSION For the reasons stated above, the Commission finds that allegation 2 of the complainant's complaint fails to state a claim under 29 C.F.R. Part 1614. The Commission finds that the agency failed to comply with EEOC Regulation 29 C.F.R. § 1614.108(e) without good cause shown. The Commission sanctions the agency's violation of its Regulation and instructions by finding that the agency discriminated against the complainant based on her national origin and in retaliation for her prior EEO activity when it required her to perform the work of a GS-13 Equal Employment Specialist for GS-12 pay from December 1, 1992 through May 21, 1994. The Commission orders the agency to fully remedy the discrimination in accordance with the Order below, and to demonstrate that it has taken steps to insure that the agency's failure to investigate a complaint involving the agency's EEO Office does not recur. ORDER The agency is ORDERED to take the following remedial action: The agency has been found to have discriminated against the complainant based on her national origin and in retaliation for her prior EEO activity when it required her to perform the work of a GS-13 Equal Employment Specialist for GS-12 pay from December 1, 1992 through May 21, 1994. The agency shall determine the appropriate amount of back pay with interest and other benefits due complainant, pursuant to 29 C.F.R. § 1614.501, no later than sixty (60) calendar days after the date this decision becomes final. The complainant shall cooperate in the agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the agency shall issue a check to the complainant for the undisputed amount within sixty (60) calendar days of the date the agency determines the amount it believes to be due. The complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision." The agency shall conduct a supplemental investigation on the issue of complainant's entitlement to compensatory damages and shall afford her an opportunity to establish a causal relationship between the payment of GS-12 wages for GS-13 level work and any pecuniary or non-pecuniary losses that the complainant can prove. The complainant shall cooperate in the agency's efforts to compute the amount of compensatory damages, and shall provide all relevant information requested by the agency. The agency shall issue a final decision on the issue of compensatory damages. 64 Fed. Reg 37,644, 37,657-58 (1999) (to be codified and hereinafter referred to as 29 C.F.R. § 1614.110). The supplemental investigation and issuance of the final decision with appropriate appeal rights shall be completed within ninety (90) calendar days of the date this decision becomes final. A copy of the final decision must be submitted to the Compliance Officer, as referenced below. The agency is put on notice that any unjustifiable delay in issuing this decision will add interest to any amount the Commission finds the complainant is entitled to in compensatory damages. Within ninety (90) calendar days of the date this decision becomes final, the agency shall submit to the Compliance Officer evidence that it has in place a procedure whereby complaints alleging unlawful discrimination by the agency's EEO Office (or its employees) are processed outside the agency's EEO Office. The evidence shall describe the procedure and the mechanism by which the agency insures that the procedure is followed by the agency's EEO Office, including a description of penalties that the agency will impose for failure to comply with the mandatory procedure. The agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation of the agency's calculation of backpay and other benefits due complainant and evidence that all corrective action has been implemented. POSTING ORDER (G1092) The agency is ORDERED to post at its Headquarters facility 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 (H1199) If complainant has been represented by an attorney (as defined by 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter referred to as 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 (K1199) 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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter referred to as 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)(Supp. V 1993). If the complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred to as 29 C.F.R. § 1614.409). STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M1199) 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 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred to as 29 C.F.R. § 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter referred to as 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 (R1199) 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: February 25, 2000 ____________ ______________________________ Date Frances M. Hart Executive Officer Executive Secretariat CERTIFICATE OF MAILING For timeliness purposes, the Commission will presume that this decision was received within five (5) calendar days of mailing. I certify that the decision was mailed to complainant, complainant's representative (if applicable), and the agency on: DATE Equal Employment Assistant 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 that 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 Department of Education's Headquarters in Washington, D. C., 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 Education's Headquarters has been found to have violated Title VII when it discriminated against an employee based on her national origin and in retaliation for her prior EEO activity by requiring her to perform GS-13 Equal Employment Specialist duties for GS-12 pay from December 1, 1992 through May 21, 1994. The Department of Education's Headquarters has been ordered to take corrective action in the form of an award of back pay with interest and benefits to the individual, and payment to her for any reasonable attorney's fees incurred in the processing of her complaint and any compensatory damages for which she proves entitlement. In addition, the agency must submit evidence to the Commission that it has established and implemented a procedure whereby EEO complaints that allege unlawful discrimination by the agency's EEO Office or its employees are processed outside that office. The Department of Education's Headquarters 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. Date Posted: ____________ _________________________ Posting Expires: __________ _________________________ 1On November 9, 1999, revised regulations governing the EEOC's federal sector complaint process went into effect. These regulations apply to all Federal sector EEO complaints pending at any stage in the administrative process. Consequently, the Commission will apply the revised regulations found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the present appeal. The regulations, as amended, may also be found at the Commission's website at WWW.EEOC.GOV. 2EEOC Regulation 29 C.F.R. § 1614.102(a)(2) requires that agencies shall provide for the “prompt, fair and impartial” processing of complaints in accordance with Part 1614 and the instructions contained in the Commissions's Management Directives.