Steve R. Matheny v. Department of Justice 05A30373 04-21-05 . Steve R. Matheny, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency. Request No. 05A30373 Appeal No. 07A00045 Agency Nos. A-96-1003, A-97-1020, A-98-1042 Hearing Nos. 140-96-8226X, 140-98-8146X, 140-A0-8158X DECISION ON REQUEST FOR RECONSIDERATION On January 13, 2003, Department of Justice (agency) initiated a request to the Equal Employment Opportunity Commission (the Commission or EEOC) to reconsider the decision in Steve R. Matheny v. Department of Justice, EEOC Appeal No. 07A00045 (December 6, 2002). EEOC regulations provide that the Commissioners may, in their discretion, reconsider any previous Commission decision. 29 C.F.R. § 1614.405(b). The party requesting reconsideration must submit written argument or evidence which tends to establish one or more of the following two criteria: (1) the appellate decision involved a clearly erroneous interpretation of material fact or law; or (2) the decision will have a substantial impact on the policies, practices or operations of the agency. Id. For the reasons set forth herein, the agency's request to reconsider is denied. BACKGROUND In the previous decision, the Commission reversed the agency's rejection of the Administrative Judge's decision in favor of the complainant, following the agency's failure to provide investigative files for the three complaints on which the complainant had requested a hearing. We briefly repeat the facts of this case in order to illuminate the discussion of the agency's and complainant's arguments. Complainant, a Paralegal Specialist, GS-11, employed at the agency's United States Attorney's Office for the Eastern District of North Carolina facility, filed a formal EEO complaint with the agency on September 30, 1995, in which he claimed that Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., and the Equal Pay Act of 1963 (EPA), as amended, 29 U.S.C. § 206(d) et seq. had been violated. In that complaint (Complaint 1), complainant alleged that the agency had discriminated against him on the bases of race (Caucasian), sex (male), and reprisal for prior EEO activity when: (1) on June 2, 1995, management terminated his Special Assistant United States Attorney (SAUSA) position and refused to convert him to the position of Assistant United States Attorney (AUSA); (2) management compensated him for work performed as a SAUSA at the GS-11/1 and GS-11/2 grade levels, while compensating a female SAUSA performing the same work at the GS-11/8 and GS-11/9 grade levels, and later converting her to an AUSA position; (3) management compensated him for work performed as a SAUSA at a lower grade and salary than that of female Paralegals in the USAO performing the same work; (4) management discounted his efforts to change his job description and grade level from GS-11 to either GS-12 or GS-13 because he contacted the Executive Office for the United States Attorneys Office (EOUSA) Equal Employment Opportunity Staff (EEOS) concerning his discrimination and EPA claims; (5) management terminated his SAUSA position because he brought his EPA claims to the attention of the EOUSA Evaluation and Review Staff (EARS); (6) management of the USAO paid him, a male, a lower salary than they paid two female AUSAs for the performance of equal work; and (7) the USAO hired two African-American females as AUSAs and refused to hire him for either of these two positions. The agency dismissed allegation 7 for untimely EEO Counselor contact. The Commission affirmed that dismissal. Matheny v. Department of Justice, EEOC Appeal No. 01966578 (September 24, 1997), request for reconsideration denied, Matheny v. Department of Justice, EEOC Request No. 05980092 (November 8, 1999). On March 21, 1997, complainant filed a second EEO complaint (Complaint 2) alleging that the agency discriminated against him based on reprisal for filing his first complaint when: (1) his evaluation for the period April 1, 1995, through March 31, 1996, was downgraded; (2) management continued to fail to promote him, as reflected by its failure to award him either a grade increase, a Quality Step Increase, or a monetary performance award, despite the fact that all other Paralegal Specialists within the Eastern District of North Carolina appeared to have received one of these awards for the same period; and (3) he was suspended without pay on November 12, 1996. On July 6, 1998, complainant filed a third complaint (Complaint 3) alleging that the agency discriminated against him: (1) based on race and color when he was continually passed over for AUSA positions; and (2) based on reprisal for filing his previous complaints when management denied him training opportunities which were available to other members of the office, including (a) denial of administrative leave to attend a continuing legal education (CLE) course in February 1998, (b) denial of a request to attend multi-district ethics training in late 1997, and (c) denial of Office of Legal Education (OLE) training opportunities since filing his first complaint. Complainant requested a hearing on Complaints 1 and 2, which were assigned to an EEOC Administrative Judge (AJ). Complainant subsequently informed the AJ (AJ-1) that he was engaged in EEO counseling for a third complaint, and requested that the proceedings be stayed so that his complaints could be consolidated. In the interim, complainant's case was reassigned to a different AJ (AJ-2). On August 31, 1998, AJ-2 issued an order remanding the first two complaints for consolidation with the third, and directing the agency to refer the entire matter for a hearing when the processing of Complaint 3 was completed. By letter dated March 11, 1999, complainant requested a hearing on all three complaints. Complainant noted that more than 180 days had elapsed since Complaint 3 had been filed and since AJ-2 had remanded Complaints 1 and 2 for consolidation with Complaint 3. By letter dated April 21, 1999 to the Assistant Director, EOUSA/EEOS (the Assistant Director), AJ-2 inquired whether that office was aware of complainant's hearing request, the status of complainant's case or request, or any other information which would be helpful in addressing complainant's concern. AJ-2 did not receive a response from the agency. By letter dated June 26, 1999, complainant again requested a hearing. Thereafter, on July 6, 1999, AJ-2 issued an order directing the agency to refer the consolidated complaints for hearing within 15 days. AJ-2 again did not receive a response from the agency. On October 12, 1999, AJ-2 issued an Order to Show Cause why sanctions should not be imposed for the agency's failure to comply with AJ-2's July 6, 1999 order. AJ-2 noted the possibility that she would issue a decision fully in favor of complainant. On an unspecified date in November 1999, the Assistant Director telephoned AJ-2 and stated that he had been ill and therefore unable to respond to the Show Cause order in a timely manner. The Assistant Director also stated that he would return the investigative files for the first two complaints to AJ-2 and would forward the file for the third complaint, which was almost complete, when it was completed. AJ-2 directed the Assistant Director to reply to the Show Cause order in writing, with an explanation of his delay in responding. On November 12, 1999, AJ-2 received a package from the agency containing the correspondence files for the first two complaints, but not the investigative files. The files were accompanied by a cover letter dated June 11, 1999 from the Assistant Director in which he states that he is responding to AJ-2's April 21, 1999 inquiry. This letter notes that the agency is forwarding the investigative reports for the first two complaints, and will forward the third when it is completed. AJ-2 did not receive this letter prior to its inclusion in the November 12, 1999 package, and it was never received by complainant. By letter dated December 23, 1999, and postmarked December 30, 1999, the agency responded to AJ-2's Show Cause order. The agency, by the Assistant Director, stated that it did not receive AJ-2's July 6, 1999 order and therefore was unable to respond. The Assistant Director further stated that he did respond to AJ-2's April 21, 1999 letter by way of the agency's June 11, 1999 letter. The Assistant Director stated that the investigation of the third complaint had been completed, and that the investigative file would be forwarded to AJ-2 as soon as it was received by his office, along with the investigative files for the first two complaints. As of March 27, 2000, the agency still had not provided the requested files to AJ-2. On that date, AJ-2 issued a decision in which she found that the agency had, without good cause shown, failed to respond fully and in a timely fashion to her orders and her requests for the investigative files. In particular, AJ-2 found that the agency did not mail its June 11, 1999 letter until November 1999, and in the interim ignored her July 6, 1999 order. AJ-2 rejected the agency's contention that it had not received the order, noting that it was served on the Assistant Director and an agency representative at their letterhead addresses, and that complainant had received the copy which was served on him. AJ-2 noted that even if the agency had not received the July 6, 1999 order, it had received the Show Cause order, which summarized the preceding order and included the instruction to refer complainant's complaints for hearing. AJ-2 noted that while the deadline for response to the Show Cause order was November 1, 1999, the agency did not respond until December 30, 1999. She further noted that although the Assistant Director stated that he was late in responding because of illness, there was no mention of illness nor any other reason stated in his written response; moreover, his written response was not submitted until more than one month after his telephonic response, with no explanation provided for that delay either. In addition, the agency failed to serve its response on complainant. On the basis of the foregoing, AJ-2 concluded her decision by finding in favor of complainant as to all allegations of his three complaints, noting instances where even the incomplete record before her contained evidence of the agency's retaliatory animus toward complainant. The AJ also noted that the limited record before her contained evidence supporting complainant's claims of pay disparity. AJ-2 then awarded relief as follows: conversion of complainant's position to Assistant United States Attorney, retroactive to June 2, 1995; recision of the suspension; back pay; and upgrade of his performance appraisal for the period April 1, 1995, through March 31, 1996, to “substantially exceeds expectations.” AJ-2 noted that complainant apparently represented himself throughout the proceedings, and therefore would not be entitled to attorney's fees, but afforded complainant the opportunity to submit evidence of fees paid to other attorneys and/or costs, as well as compensatory damages. AJ-2 also ordered the agency to provide complainant with training on an equal basis with all other AUSAs, and directed the agency to post a notice of the finding of discrimination. On April 11, 2000, the agency filed a Motion for Reconsideration with AJ-2. The agency requested that AJ-2 impose a lesser alternative sanction and allow the matter to proceed to hearing. The agency stated that its “clear negligence” in this matter was occasioned by changes in EOUSA's personnel and by unexpected illness. The agency stated that the Assistant Director had left the agency February 11, 2000, and had been in transition for a period of time prior to that date. The agency further stated that the Assistant Director had been ill for a substantial period subsequent to the October 12, 1999 Show Cause order. The agency argued, inter alia, that it acted neither willfully nor in bad faith. Complainant replied to the agency's motion noting, in part, that the Commission's regulations do not require a finding of willfulness or bad faith. On June 27, 2000, AJ-2 issued a decision denying the agency's motion,<1> and denying complainant's requests for attorney's fees and compensatory damages, but awarding certain costs. AJ-2 denied the request for attorney's fees noting that complainant had not submitted the evidence required to substantiate his claim. AJ-2 awarded complainant costs totaling $102.21. AJ-2 denied the request for compensatory damages, noting that complainant's evidence on damages addressed only the agency's conduct and not any injury suffered by him as a consequence, and therefore appeared to be a claim for punitive damages. The agency appealed AJ-2's decision to the Commission. In its appeal, the agency argued that AJ-2 abused her discretion by issuing a finding of discrimination as a sanction; that the relief awarded by AJ-2 was not appropriate, in that the agency had presented clear and convincing evidence that complainant would not have been selected as an AUSA; but that AJ-2's decision was correct with regard to the denial of attorney's fees and compensatory damages, and the assessment of costs. The agency contended, in part, that AJ-2 should have informed the agency that its response to the Show Cause order was deficient before issuing her March 27, 2000 decision, and that the agency did not show “flagrant disregard” for her orders. Complainant subsequently cross-appealed solely on the matter of attorney's fees and costs. The previous decision, issued December 6, 2002, affirmed that AJ-2 properly imposed the sanction of a finding in favor of complainant as to all claims of the three complaints for which the agency failed to provide investigative reports. Regarding remedy, the Commission found no basis to disturb either the denial of attorney's fees or the award of costs limited to $102.21. It also found that the agency did not establish by clear and convincing evidence that complainant would not have been converted to an AUSA position absent unlawful discrimination. On request for reconsideration, the agency puts forth four distinct arguments in support of its contention that the Commission's decision involves a clearly erroneous interpretation of law, and that it will have a substantial impact on the policies, practices and operations of the agency. First, it argues that the imposition of sanctions which enter a default judgment for a complainant violate the principle of sovereign immunity. Second, the agency claims that the sanctions violate the Federal Rules of Civil Procedure, Rule 55(e), in that a default judgment was awarded against the United States without proof that the complainant is entitled to the relief. Next, the agency argues that the relief as ordered by the AJ and the previous decision exceeded that which would make the complainant whole. Finally, the agency claims that the previous decision violated the employment policies of the U.S. Attorney's Office, in that it bypassed the requirements that complainant be subjected to a background check/investigation, a period of temporary appointment, and that he be a member of a state Bar in good standing, among other qualifications. In response, complainant contends first that the agency filed its request for reconsideration in an untimely fashion, and that it did not adhere to the extended deadline for the filing of its brief in support of its request. He also contests the agency's submission of a Motion to Amend its request for reconsideration, submitted with the Amended Brief a full 20 twenty days past the extended deadline, to which he was not, by regulation, able to respond. Substantively, complainant argues that the Commission was empowered through Title VII's waiver of sovereign immunity to award the relief ordered by the AJ in his case as a sanction against an agency for noncompliance with the administrative process, and that Supreme Court precedent and the Commission's regulations permit the imposition of sanctions. Complainant also advocated that the remedy awarded did not exceed “make-whole” relief, and that the agency's employment practices had not been adversely impacted in that he had already met the employment requirements for an AUSA. Finally, complainant asserted that the agency had not complied with the Commission's regulation on interim relief, arguing that he should have been placed in the position in question while the initial appeal and this request for reconsideration were pending. ANALYSIS AND FINDINGS<2> Sovereign immunity is the principle which holds that no party can bring a suit against the government without its consent. "'Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.'" Department of the Army v. Blue Fox, Inc., 525 U.S. 255, 260 (1999) (quoting FDIC v. Meyer, 510 U.S. 471, 475 (1994)). "[A] waiver of sovereign immunity is to be strictly construed, in terms of its scope, in favor of the sovereign." Ibid. (citing Lane v. Pena, 518 U.S. 187, 192 (1996) and Library of Congress v. Shaw, 478 U.S. 310, 318 (1986)). "Such a waiver must also be 'unequivocally expressed' in the statutory text." Ibid. (citing Lane, 518 U.S. at 192). The Court will "constru[e] ambiguities in favor of immunity," United States v. Williams, 514 U.S. 527, 531 (1995). And, "limitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied." Lehman v. Nakshian, 453 U.S. 156, 161 (1981). Employees and applicants for federal employment are required to participate in an administrative process administered by the Commission when making a claim of unlawful employment discrimination against their employer (or, in the case of an applicant, their potential employer), the U.S. government.<3> Section 717 of Title VII of the Civil Rights Act of 1964 prohibits employment discrimination by federal agencies. 42 U.S.C. § 2000e-16(a). That section provides for a waiver of the principle of sovereign immunity and allows for federal sector complainants to pursue their claims in federal District Court once they have exhausted their remedies in the administrative process. 42 U.S.C. § 2000e-16(c). Federal agencies “shall comply with such rules, regulations, orders, and instructions” which are issued by the Commission and which the Commission “deems necessary and appropriate to carry out its responsibilities” to enforce the prohibitions on unlawful discrimination in employment. 42 U.S.C. § 2000e-16(b). That provision of Title VII also delegates to the Commission the authority to enforce the statute prohibiting discrimination “through appropriate remedies . . . as will effectuate the policies of this section.” Pursuant to that statutory authority, the Commission promulgated regulations, first in 29 C.F.R. Part 1613 and then in 29 C.F.R. Part 1614, “necessary and appropriate to carry out its responsibilities” to enforce the non-discrimination provisions applicable to the federal sector. Furthermore, the Commission's authority to promulgate such regulations is reinforced through several Executive Orders, including Exec. Order No. 11,375, 32 Fed. Reg. 14,303 (1967); Exec. Order No. 11,478, 34 Fed. Reg. 12,985 (1969); and Exec. Order No. 12,067, 43 Fed. Reg. 28,967 (1978) . Exec. Order No. 11,375 gave the Civil Service Commission authority to “provide for the prompt, fair, and impartial consideration of all complaints of discrimination in Federal employment . . ..” See Exec. Order No 11,375, § 104, amending § 104 of Exec. Order No. 11,246. That authority was transferred to the Commission by Exec. Order No. 12,067, which implemented the Reorganization Plan Number 1 of 1978. Further, section 1-303 of Exec. Order No. 12,067 confirms that, “[t]he Equal Employment Opportunity Commission shall issue such rules, regulations, policies, procedures or orders as it deems necessary to carry out its responsibilities under this order.” See also Exec. Order No. 11,478, § 5 (authorizing the Civil Service Commission to issue regulations necessary to carry out the order of non-discrimination in federal sector employment). As required by Exec. Order No. 12,067, § 1-303, the Commission consulted with “the affected Federal departments and agencies during the development of any proposed rules, regulations ?,” including the Department of Justice. The regulations were then approved by the Executive Office of the President. Neither in 1991, when 29 C.F.R. Part 1614 was first proposed, nor in 1999, when it was revised, did the Department of Justice object to the provisions granting administrative judges the authority to impose sanctions on noncomplying parties, when appropriate. At this point, it would appear that the agency must abide by § 1-303 of Exec. Order No. 12,067, which mandates that, “departments and agencies shall comply with all final rules, regulations, policies, procedures or orders of the Equal Employment Opportunity Commission.” See also Exec. Order No. 11,478, § 5 (stating that the “head of each executive department and agency shall comply with the regulations, orders, and instructions issued by the [Civil Service] Commission under this Order”). The Commission's administrative process is designed to provide a forum for federal complainants to pursue their claims, and was structured to provide the necessary framework to allow the Commission to enforce the discrimination statutes. Within the administrative process, the administrative judges have been granted powers designed to aid them in developing the administrative record for decision, including overseeing discovery, ordering a supplemental investigation and holding a hearing. The parties are required to abide by the orders and requests of the administrative judges to provide the investigative files, documents, records, comparative data, statistics, affidavits, and the attendance of witnesses, i.e., items that would aid the AJ in developing the record for decision. Noncompliance, without good cause shown, can result in a sanction as outlined in 29 C.F.R. § 1614.109(f)(3), in which an AJ “shall, in appropriate circumstances: (i) draw an adverse inference that the requested information, or the testimony of the requested witness, would have reflected unfavorably on the party refusing to provide the requested information; (ii) consider the matters to which the requested information or testimony pertains to be established in favor of the opposing party; (iii) exclude other evidence offered by the party failing to produce the requested information or witness; (iv) issue a decision fully or partially in favor of the opposing party; or (v) take such other actions as appropriate.” It is the Commission's position that it has the authority to issue sanctions in the administrative hearing process because it has been granted, through statute, the power to issue such rules and regulations that it deems necessary to enforce the prohibition on employment discrimination. The Commission has determined that delegating to its AJs the authority to issue sanctions against agencies, and complainants, is necessary and is an appropriate remedy which will effectuate the policies of the Commission. If no repercussions for noncompliance existed, the Commission would be unable to enforce its mandate of eliminating employment discrimination in the federal workplace. The federal agencies are mandated to submit to the rules, regulations, orders, and instructions as promulgated by the Commission, but in instances of non-cooperation by agencies, the Commission has determined that, given its inability to issue subpoenas to other federal agencies, the use of sanctions is a necessary component of the regulatory scheme in order to ensure that compliance. In its January 6, 2003 memorandum, the Department of Justice itself recognized that the Commission must have authority to enforce its orders: “And arguably, EEOC may have some inherent power to impose some type of sanctions designed to maintain the integrity of its proceedings even against federal agencies. One could infer this from the fact that Congress is presumed to have made its statutory scheme effective.” Re: The Equal Employment Opportunity Commission's Authority To Impose Attorney's Fees Against Federal Agencies for Failure To Comply with Orders Issued by EEOC Administrative Judges (Department of Justice memorandum) (January 6, 2003) at 8. In West v. Gibson, 527 U.S. 212 (1999), the Supreme Court found that the Commission was empowered through Title VII and the Civil Rights Act of 1991, 42 U.S.C. § 1981a, to award compensatory damages to complainants in the administrative process. The Court determined that the term “appropriate remedies” found in section 717 is not limited to remedies specifically set forth in Title VII. The administrative process was put in place to require a complaining party to pursue relief for discrimination administratively, prior to filing a civil action. The Commission is charged with eradicating employment discrimination within the federal government, and carries out that charge through the 29 C.F.R. Part 1614 process. The Court wrote that “to deny that an EEOC compensatory damages award is, statutorily speaking, ‘appropriate' would undermine this remedial scheme,” a scheme which “encourag[es] quicker, less formal and less expensive resolution of disputes within the Federal Government and outside of court.” West, 527 U.S. at 219. To deny the Commission the power to ensure compliance with its administrative process through the use of sanctions is to encourage the non-cooperation of agencies with the administrative process. This would have the effect of forcing complainants into court, which would, as the Court wrote, “increase the burdens of both time and expense that accompany efforts to resolve hundreds, if not thousands, of such disputes each year.” Id. The agency argues that the terms of the consent to a waiver of sovereign immunity must be specific and will limit the available remedies in any suit against the government. In this case, the agency claims that the United States did not waive sovereign immunity for the relief ordered, the hiring of an employee with back pay, for the sole purpose of remedying the agency's failure to comply with the AJ's requests and orders.<4> Instead, it argues that relief can only be ordered against the United States as a remedy for enforcing the prohibition on discrimination, i.e., it asserts, only after a finding has been made on the merits of complainant's case, and discrimination has been found to have existed. In support of this argument the agency cites the memorandum opinion of its own Office of Legal Counsel, issued in response to a request from a third agency, in which it opines that the Commission does not have the power to issue monetary sanctions against another agency within the administrative hearing process. Department of Justice memorandum. We note however, that the sanction issued by the AJ was a finding of discrimination in favor of complainant, not a monetary sanction. The Commission's regulations provide for the imposition of a finding in favor of either party as a sanction. It is a well-settled matter of EEO law that prevailing parties are entitled to equitable remedies such as back pay and placement in the position, i.e. make whole relief. The equitable remedies that flow from that finding, the financial consequences such as the hiring of an employee and the awarding of back pay, were not the actual sanction. The AJ could have easily awarded injunctive relief to complainant pursuant to her finding that complainant should be the prevailing party. The agency also argued that Fed. R. Civ. P. 55(e) precludes the Commission from issuing a decision in favor of complainant because it prohibits default judgments against the federal government without an evidentiary basis in a factual record that complainant is entitled to relief. We disagree that the Commission is not able to enter a judgment for the complainant in a context such as this. As the Commission looks to the Federal Rules of Civil Procedure for guidance, even as we are not strictly bound by them, we find that a judgment such as that entered by the AJ in the instant case would not be precluded under the Rules. Fed. R. Civ. P. 55(e) states that “no judgment of default shall be entered . . . unless the claimant establishes a claim or right to relief by evidence satisfactory to the court.” (Emphasis added). See Giampaoli v. Califano, 628 F.2d 1190 (9th Cir. 1980) (if a claimant presents a prima facie case, R. 55(e) does not apply); Alameda v. Secretary of Health, Education and Welfare, 622 F.2d 1044 (1st Cir. 1980) (limitation of default judgment against the government does not prohibit an entry of default and does not relieve government from duty to defend cases or obey court orders). We note that the AJ in the instant case specifically found that the limited evidence before her showed that complainant's claims of reprisal were supported, as well as his allegations concerning pay disparity, thereby rendering a decision in complainant's favor an appropriate action. We address the agency's third and forth arguments in conjunction because the agency's arguments and our response to such are intertwined. The agency further argued that the relief as ordered by the AJ and the Commission exceed “make-whole” relief. The AJ ordered that complainant be appointed to an AUSA position, retroactive to June 2, 1995. The agency argued that complainant has received a “windfall” in that he is not then subject to the eligibility and suitability requirements or the trial period to which all AUSAs are subject. The agency also argued that the relief ordered is inconsistent with its policies and practices regarding the employment of AUSAs. It went into great detail in its brief in describing the eligibility and suitability requirements for an AUSA - the standards a successful AUSA applicant must meet before a decision is made to hire him or her, standards relating to successful completion of a wide-ranging and stringent background check, a temporary appointment followed by a trial period of one to two years, and Bar membership in good standing. The agency argued that AUSAs are subject to the highest levels of scrutiny to ensure the quality of the employee's legal skills and moral good standing. We do not find that the placement of complainant in an AUSA position would violate the policies, practices or operations of the agency. We find that this argument is hollow with respect to complainant, who has been an employee of the agency since 1991, who states he is already subjected to a full background check on a regular basis, and is a member in good standing of the Bar of the state of North Carolina, and who the agency for a period of approximately two years sent into District Court to represent the agency in his position as a SAUSA. It is disingenuous for the agency to argue now that the complainant is not up to their standards for hiring. If, however, the other attorneys who were converted from SAUSAs to AUSAs when the SAUSA program was discontinued were subject to a new background check, a new temporary period and a probationary period, as the agency is arguing complainant should be subjected to, then complainant would also be subject to these requirements. If, instead, they were credited with time served and not treated as a new hire, complainant should not as well. The remedy ordered is designed to put complainant in the position he would have occupied had the discrimination not occurred. Upon implementation of our order, the agency may subject complainant to those requirements only on a showing that the employees converted from SAUSAs to AUSAs in 1995 were also freshly subject to the hiring requirements of an AUSA. Finally, we note that complainant argued in his brief that the agency Legal Counsel informed the current U.S. Attorney for the Eastern District of North Carolina that he could not promote complainant to an AUSA position while his complaint is pending. Complainant argued that this raises a claim of retaliation for his EEO activity. Complainant is advised that if he wishes to pursue, through the EEO process, this additional claim of reprisal he raised on appeal, he shall initiate contact with an EEO Counselor within fifteen days after he receives this decision. The Commission advises the agency that if complainant seeks EEO counseling regarding the new claim within the above fifteen-day period, the date complainant filed the appeal statement in which he raised this claim with the agency shall be deemed to be the date of the initial EEO contact, unless he previously contacted a counselor regarding these matters, in which case the earlier date would serve as the EEO Counselor contact date. Cf. Alexander J. Qatsha v. Department of the Navy, EEOC Request No. 05970201 (January 16, 1998). Complainant also argued that the agency violated the provisions on interim relief, as found in 29 C.F.R. §§ 1614.502 and 1614.505, when it did not place him in the position of an AUSA while the RTR was pending. The agency did not respond to this issue. We find that those provisions in the regulations are applicable only in the case of a removal, separation or suspension continuing beyond the date of the request for reconsideration, and when the initial appeal decision, or AJ decision, orders retroactive restoration. 29 C.F.R. § 1614.505(a)(1). The instant case does not involve those adverse actions. CONCLUSION After a review of the agency's request for reconsideration, the previous decision, and the entire record, the Commission finds that the agency's request fails to meet the criteria of 29 C.F.R. § 1614.405(b), and it is the decision of the Commission to deny the agency's request. The decision of the Commission in EEOC Appeal No. 07A00045 remains the Commission's final decision. There is no further right of administrative appeal on the decision of the Commission on this request for reconsideration. ORDER (as modified)<5> Within sixty (60) calendar days of the date this decision becomes final, the agency is ordered to take the following remedial action: 1. The agency shall appoint complainant to an Assistant United States Attorney position, retroactive to June 2, 1995, together with back pay and benefits, subject to requirements of a newly hired AUSA only on a showing that the employees converted from SAUSA's to AUSA's in 1995 were also freshly subject to the hiring requirements of an AUSA; 2. The agency shall remove the one-day suspension from complainant's personnel file and any other official records where it may appear, and restore complainant's pay for that day, with interest, pursuant to 29 C.F.R § 1614.501; 3. The agency shall tender to complainant costs in the amount of $102.21; 4. The agency shall revise complainant's performance evaluation for the period April 1, 1995, through March 31, 1996, to reflect an overall performance rating of “substantially succeeds expectations.” In addition, the agency shall tender to complainant any awards that such a rating would have warranted; 5. The agency shall ensure that complainant is provided with training on an equal basis with all other AUSAs, and that neither his race, color, sex, nor prior EEO activity is a factor in determining whether he is entitled to training; and 6. The agency shall post a notice of the finding of discrimination, as set forth below in the paragraph entitled, “Posting Order.” 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 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 the corrective action has been implemented. ATTORNEY'S FEES (H0900) If complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the agency. The attorney shall submit a verified statement of fees to the agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. POSTING ORDER (G0900) The agency is ordered to post at the United States Attorneys Office for the Eastern District of North Carolina 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. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501) Compliance with the Commission's corrective action is mandatory. The agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. The agency's report must contain supporting documentation, and the agency must send a copy of all submissions to the complainant. If the agency does not comply with the Commission's order, the complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File A Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900) 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. 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 (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: ______________________________ Stephen Llewellyn Acting Executive Officer Executive Secretariat ____04-21-05______________ Date 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 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 Justice, United States Attorneys Office for the Eastern District of North Carolina, 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 Justice, United States Attorneys Office for the Eastern District of North Carolina, has been found to have discriminated against the individual affected by the Commission's finding. The Department of Justice, United States Attorneys Office for the Eastern District of North Carolina, shall place the affected individual into the position denied him on account of discrimination and tender back pay and benefits; expunge a suspension previously imposed on the affected individual; upgrade the affected individual's performance appraisal; and provide training to the affected individual. The Department of Justice, United States Attorneys Office for the Eastern District of North Carolina, 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 and will not retaliate against employees who file EEO complaints. The Department of Justice, United States Attorneys Office for the Eastern District of North Carolina, 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: _________________ 29 C.F.R. Part 1614 1The AJ noted that, on an unspecified date prior to issuance of her June 27, 2000, decision, the agency finally had provided the requested investigative files. 2 We find insufficient reasons for dismissing this RTR on the basis of the agency's failure to comply with filing deadlines. 3 The Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq., however, does provide for an opt-out provision, whereby a complainant is able to proceed directly to District Court, instead of first proceeding through the administrative process, after providing notice to the Commission. 29 U.S.C. § 633a(d) . 4 Although it also argues that the doctrine of sovereign immunity precludes the Commission from issuing any sanctions against another federal agency for failure to comply with the Commission's regulations and orders, describing such sanctions as “punitive,” we note that the agency states that “this issue need not be addressed” in this case. 5 Although the previous decision ordered the agency to consider taking disciplinary action against the “employees identified as being responsible for the discriminatory treatment perpetuated against complainant,” in view of the default judgment we have modified the order to delete this provision, as no findings have been made by the Commission as to who those individuals would be.