SYLVIA FARRINGTON, COMPLAINANT,
v.
JANET NAPOLITANO, SECRETARY, DEPARTMENT OF HOMELAND SECURITY, AGENCY.

Appeal No. 
0720090011
Hearing No. 510-2006-00218X
Agency No. HS 05-FEMA-004142

January 19, 2011

DECISION

Following its undated final order, the Agency filed a timely appeal which the Commission accepts pursuant to 29 C.F.R. § 1614.405(a). On appeal, the Agency requests that the Commission affirm its rejection of the decision of an EEOC Administrative Judge (AJ), who found discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. The Agency also requests that the Commission affirm its rejection of the relief ordered by the AJ. [FN1]

BACKGROUND

Since 1996, Complainant was employed as a Disaster Assistance Employee (DAE) at the Federal Emergency Management Agency (FEMA). The record establishes that Complainant had a consistent work history of being deployed by FEMA over the eight years preceding the events at issue in senior-level management positions for catastrophic events, and was the recipient of numerous awards and bonuses. At the time of the events at issue, Complainant was serving as a Branch Chief of Community Education and Outreach in FEMA's Orlando, Florida office.

On October 10, 2005, Complainant filed a formal EEO complaint alleging she had been discriminated against on the bases of race (African-American), sex (female), and in reprisal for prior protected activity, when she was wrongfully subjected to an administrative investigation that began in April 2005 and, on May 27, 2005, when she was abruptly released from her position in Orlando. According to Complainant, she was further "embarrassed and degraded" by her release when armed security guards were asked to observe her until she left the facility with her belongings. Moreover, Complainant alleged that the results of the investigation were "broadcast" across the Agency by employees and management officials. Complainant also alleged that she had been subjected to an ongoing discriminatory hostile work environment since June 2001.

Following the investigation into her complaint, Complainant was provided with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The AJ held a hearing on May 15 - 48, 2007.

In a September 26, 2008 decision, the AJ found that Complainant proved that Agency management's articulated reasons for the administrative investigation and resulting release from her position in Orlando were a pretext for race, sex and reprisal discrimination. Moreover, while the AJ did not find sufficient evidence to support her claim of a discriminatory hostile work environment before 2005, the AJ found that during 2005, Complainant was subjected to a hostile work environment based on her race, sex and prior protected activity. Specifically, the AJ concluded that the events surrounding the investigation and release were sufficiently severe to alter the terms and conditions of Complainant's employment.

According to the AJ, in January 2005, Complainant had a conversation with her immediate supervisor (S1, white female) about her belief that S1 had engaged in ongoing negative actions towards non-white staff, including herself. Complainant told S1 that she believed that, in the past, S1 had used the word "darkie," and that if S1 continued to undermine complainant's authority in the workplace, she would file a formal EEO complaint against S1. S1 conceded that this conversation occurred, although denied Complainant threatened to file an EEO complaint. S1 denied ever using the word "darkie," and testified she was "very upset" over the allegations.

The AJ found that shortly after this conversation, Complainant was subjected to an administrative investigation, based on written complaints filed by two of Complainant's newly employed subordinate staff members. [FN2] The record reflects that the investigation related to Complainant's "possible abuse of position and inappropriate behavior."A review of the investigative report shows that it focused on Complainant's management style, including whether she micromanaged her employees; led employees by fear and intimidation; gave employees misleading directions; and engaged in character assassination and/or preferential treatment. When the investigation was completed in May 2005, a management decision was made to release Complainant from her assignment to the Orlando Branch Chief position, and a recommendation was made to terminate her future employment with FEMA.

The AJ noted that a manager who briefly replaced S1, while she was temporarily detailed to another location for several months, stated that he informally counseled Complainant about her management style and the need to provide her employees with clear direction. He testified that he found Complainant receptive to this conversation and that she had taken positive steps to address staff concerns when S1 returned to Orlando and the decision was made to release Complainant from her position.

The AJ found that another Orlando Branch Chief (BC, East Indian male) was similarly situated to Complainant, but treated far more favorably during this same period. S1 was also BC's direct supervisor. A female employee, who reported to BC, brought a sexual harassment complaint against BC to the attention of S1 and an EEO Officer. The AJ found that S1 resolved the issue informally by counseling BC and moving the female employee's desk away from BC's line of sight. [FN3] The AJ noted that in January 2005, a second female employee complained to S1 about n BC's sexual harassment. The second employee was also advised to speak to BC to resolve matters. The AJ determined that Complainant was not given the same opportunities to defend herself as were provided to BC. Moreover, the AJ determined that the complaints against BC were more serious than those against Complainant, but no formal investigation was conducted and he was not released as a result of the complaints.

The AJ noted that S1 made public announcements to Complainant's co-managers and staff that Complainant was released due to an investigation. The AJ found that, "these individuals did not have a right or need to know this information. Given the fact that the Complainant was responsible for hundreds of employees, when [S1] made her announcements numerous employees were going to speculate about the details. It is common sense that this contributed to more rumors. The end result was that the Complainant's reputation was tarnished from the public announcements and rumors."In addition, the AJ found that S1 included a statement in Complainant's performance appraisal that she "was released from the disaster pending the outcome of an administrative investigation."

The AJ noted that S1 admitted to attending a meeting with management officials when the determination was made to release Complainant. However, S1 testified that she was not involved with, or a decision-maker for, Complainant's release from Orlando. However, the AJ found that the weight of the evidence established that S1 was "at the center" of the actions taken against Complainant -- from her early involvement in the documentation process to elevate scrutiny of Complainant, to her suggestion that an EEO Officer become involved, to her involvement in the administrative investigation, her advocacy for Complainant's release, her public announcements about the investigation and release, and her documentation of the investigation and release on Complainant's performance appraisal which would raise questions by future potential employers. The Agency argued that any differential treatment between Complainant and BC could be attributed to different managers making the decision. The AJ found, however, that S1 was a responsible management decision-maker in both cases.

The AJ found that the Mitigation Region 4 Director, as well as several other management officials outside the Orlando office, later reviewed the investigative report against Complainant and, at the hearing, questioned its objectivity, its balance, its scope and findings, and the capacity and capabilities of the two newly hired employees who initially complained about Complainant. He opined that the report's recommendation for termination was a "tremendous leap" from what was justified, explaining that termination was usually reserved for situations where unlawful conduct occurred or where employees have endangered the personal safety other others. Another management official who reviewed the report also pointed out that while Complainant was accused of being a "micromanager," she had "practically a new staff" that needed more supervision than seasoned employees. A third official called the report "suspect."

As a result of the outside management questioning of the report and the release decision of the Orlando management, the recommendation to terminate Complainant from FEMA was rejected. As an alternative, a decision was made that Complainant should attend a training course and be assigned to work with a mentor on a project. After completion of these two requirements, Complainant was to be allowed to serve in future available managerial positions.

The Agency argued that if discrimination were found, Complainant was not entitled to a backpay award because she failed to mitigate her damages by not completing the mentoring assignment. However, according to the AJ, Complainant completed the training course, but was only offered one mentoring assignment which she was unable to take. Moreover, although the alleged purpose of the mentoring was to improve Complainant's supervisory skills, the mentoring assignment offered was to work in a "think tank," as opposed to an assignment shadowing another manager to improve her interpersonal skills. Complainant testified that she was already working on a project in Washington, D.C. at the time she was offered the mentoring assignment, and that her supervisor needed her to remain for her full commitment because they were involved in a massive hiring. Complainant also testified that the Agency asked her in 2007 if she was available for another mentoring assignment, and although she answered in the affirmative, no such assignment was offered.

The AJ noted since Complainant's release, she had not been offered any supervisory positions in her cadre. The AJ found that Complainant was offered a management position from a different region, but the offer was later retracted because a named Agency official stated that Complainant could not serve in a managerial role without first completing a mentoring assignment. The AJ concluded that it was not the Complainant's fault that she had not completed a mentoring assignment. The AJ stated that, "the evidence is clear that [Complainant] was not provided a realistic opportunity to be mentored so she could regain her responsibilities, status, and income."Therefore, the AJ determined Complainant was entitled to backpay.

In her petition for compensatory damages, Complainant stated that she started seeing a psychologist because she suffered from emotional distress, humiliation, and anguish because of Agency's actions. Complainant also stated she suffered from headaches, sleeplessness, nervousness, anxiety, and embarrassment. Complainant's friend corroborated her testimony concerning the emotional harm she has suffered as a result of the Agency's actions, and reported that Complainant suffered from depression and humiliation and "had been traumatized and remains in a state of devastation" after being discriminated against by the Agency.

After a review of the testimony, the AJ awarded Complainant $60,000 in non-pecuniary compensatory damages to compensate her for the discrimination. The AJ also awarded Complainant attorney's fees in the amount of $114,842.28, but did not award any costs due to lack of adequate documentation.

As for the remaining remedies, the AJ ordered the Agency to place Complainant in a managerial position comparable to the one she held at the time of the discrimination at issue, outside the supervision of S1 and another named Agency official; provide Complainant backpay; provide training for the RMOs; expunge evaluation reports of any documents referencing the administrative investigation from Complainant's personnel file; amend Complainant's performance evaluation to reflect a highly favorable evaluation; remove the mentoring requirement imposed by management; issue an email praising and welcoming Complainant's return to the Agency; and post a notice on all employee bulletin board nationwide stating it was found in violation of Title VII. The AJ explained that the notice should be posted nationwide given the mobility of the Agency's staff.

The Agency subsequently issued a final order rejecting the AJ's finding that Complainant proved that she was subjected to discrimination as alleged. At the same time, the Agency filed the instant appeal.

CONTENTIONS ON APPEAL

On appeal, the Agency argues that Complainant failed to establish a prima facie case of discrimination, and even if she did, she failed to prove that the Agency's proffered reasons for its actions were pretext for discrimination and/or unlawful retaliation. In support of its claims, the Agency disputes the AJ's finding that Complainant and BC were similarly situated. Specifically, the Agency argues that S1 was not the decision-maker in both cases and that they did not allegedly commit nearly identical offenses. Moreover, the Agency asserts that Complainant's release from the Orlando office was not an adverse action. Finally, if the discrimination finding is upheld, the Agency argues that the AJ abused her discretion in ordering the agency to pay backpay and compensatory damages award should be reduced because Complainant failed to mitigate her damages by making herself available for DAE assignments, and failed to provide adequate proof, including medical evidence, of her emotional harm. Finally, the Agency argued that the AJ abused her discretion by ordering Complainant not be placed again under the supervision of named responsible management officials, ordering discipline of a named official, and in ordering the agency to post nationwide notices.

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted).

An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VLB. (November 9, 1999).

Upon review of the record, we find that Complainant established a prima facie case of race, sex and reprisal discrimination because she presented facts that if left unexplained, reasonably gave rise to an inference of discrimination. Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). Complainant, an African American female, was a long time and well-regarded Agency manager. Shortly after she accused her supervisor of acting in a racially discriminatory manner, she was subjected to an investigation of her management style and released from her position with the recommendation of termination. This evidence is sufficient to support an inference of discrimination and establish a prima facie case.

More importantly, substantial evidence of record supports the AJ's determination that Complainant proved, by a preponderance of the evidence, that the Agency's explanations for its actions were a pretext for discrimination and/or unlawful retaliation. Three high-level management officials, outside the Orlando office, testified to the flaws of the investigation and questioned its objectivity, as well as testifying about the unusual nature of the penalty imposed in this case. There is also ample evidence that a similarly situated manager, not of Complainant's protected groups, was treated much more favorably during the same time period by the same officials. Accordingly, we find that the evidence of record supports the AJ's finding of discrimination and retaliation.

Equitable Relief
Turning to the relief, we discern no basis to disturb the AJ's findings and remedial orders. Despite the Agency's arguments to the contrary, we find that the record supports the AJ's determination that Complainant was not provided with a realistic opportunity to complete the mentoring assignment required by the Agency to secure another management position. Accordingly, Complainant is entitled to reinstatement in a comparable management position with an appropriate backpay award without fulfilling the mentoring requirement. We also find ample support for the AJ's finding that Agency management took affirmative steps to negatively impact Complainant's reputation across FEMA, so the nation-wide posting of the discrimination finding is an appropriate remedial measure, as is the ordered corrections to her performance appraisal.

Compensatory Damages
With regard to the compensatory damages award, pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant who establishes his or her claim of unlawful discrimination may receive, in addition to equitable remedies, compensatory damages for past and future pecuniary losses (i.e., out of pocket expenses) and non-pecuniary losses (e.g., pain and suffering, mental anguish).42 U.S. C. § 1981a(b)(3). For an employer with more than 500 employees, such as the Agency, the limit of liability for future pecuniary and non-pecuniary damages is $300,000. Id.

The particulars of what relief may be awarded, and what proof is necessary to obtain that relief, are set forth in detail in EEOC Notice No. 915.002, Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991 (July 14, 1992). Briefly stated, the complainant must submit evidence to show that the agency's discriminatory conduct directly or proximately caused the losses for which damages are sought. Id. at 11-12, 14;Rivera v. Department of the Navy, EEOC Appeal No. 01934157 (July 22, 1994). The amount awarded should reflect the extent to which the agency's discriminatory action directly or proximately caused harm to the complainant and the extent to which other factors may have played a part. EEOC Notice No. N 915.002 at 11-12. The amount of non-pecuniary damages should also reflect the nature and severity of the harm to the complainant, and the duration or expected duration of the harm. Id. at 14.

The Agency has argued that the damages award in this case should be reversed because Complainant did not provide medical evidence to support her claim. However, evidence from a health care provider or other expert is not a mandatory prerequisite for recovery of compensatory damages for emotional harm. SeeLawrence v. United States Postal Service, EEOC Appeal No. 01952288 (April 18, 1996) (citing Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (January 5, 1993)). Complainant's own testimony, along with the circumstances of a particular case, can suffice to sustain her burden in this regard. Id. The more inherently degrading or humiliating the Agency's actions, the more reasonable it is to infer that a person would suffer humiliation or distress from that action. Id. In addition statements from others, like Complainant's friend in the instant case, can address the outward manifestations or physical consequences of emotional distress, including sleeplessness, anxiety, stress, depression, humiliation, emotional distress, or loss of self-esteem.

Taking into account the evidence of non-pecuniary damages submitted by the Complainant, including the severity and public nature of the actions taken management against a long-time employee who had been respected and praised in the past, that resulted in emotional anguish and humiliation, we find the AJ's award of $60,000 to be appropriate. This amount takes into account the severity of the harm suffered, and is consistent with prior Commission precedent.

Attorneys' Fees
With regard to attorney's fees and costs, the record contains a copy of Complainant's attorneys' petition submitted to the AJ for the time period from May 27, 2005 until June 9, 2007. The petition requested a total of $177,186.50 in attorney's fees and costs representing a total of 788.35 hours worked on Complainant's case at the hourly rate of $225.00 for lead counsel and $200.00 for his associate, for a total of $167,354.20. He also stated that they incurred legal costs in the amount of $9,832.30. After July 31, 2007, the attorney fees were based upon billing rate of $325.00 for Complainant's lead attorney and $260.00 for the associate.

We note that the Agency filed a Response to Complainant's Petition with the AJ contesting the hourly fee amount for two attorneys. The Agency asserted that Complainant failed to substantiate the appropriate community rate. The Agency argued that there was no documentation to show that the attorneys had been previously been paid at the requested rates in other cases other than Complainant's own affidavit. The Agency requested that the fees be reduced to $225.00 per hour for the lead attorney and his associate be paid at $150.00 per hour. The Agency also objected to the amount of hours Complainant's attorneys charged for, describing them as excessive and unnecessary. For instance, the Agency argued that it was excessive to have two attorneys present for a four-day trial with the only observable role of the associate attorney being that of passing documents or instructive notes from Complainant to the primary counsel. They also cited as unnecessary the charge for reviewing arbitration materials when the instant case never went to arbitration.

The AJ noted that the discrimination occurred at the agency's Orlando, Florida facility, Complainant's petition, however, focused on claimed rates in Atlanta, Georgia where the discrimination did not occur and where Complainant does not reside. The AJ noted that neither party presented any information of what the prevailing rates were for the Orlando, Florida area. The record reflects that not only did the AJ find the hourly rates charged to be excessive but some of the requests should not be paid at all. The AJ determined that the appropriate hourly rate is $225.00 per hour for Complainant's attorney and $150.00 per hour for the associate. The AJ also found that the fees billed from May 2005 through part of October 2005 were premature based on the fact that Complainant did not file her formal EEO complaint until October 10, 2005. The AJ found that based upon both parties' submission and the evidence present, she determined that an across-the-board reduction of 10% was appropriate. Therefore, Complainant was awarded the sum of $114,842.48 in attorney's fees. We determine that the AJ's assessment of the rate and amount of attorney's fees was well reasoned and appropriate, given the circumstances of this particular case. The Agency shall pay the attorney in the amount of $114,842.48 in attorney's fees.

CONCLUSION

For the reasons stated above, we REVERSE the Agency's final action, and REMAND this matter to the Agency to take remedial action in accordance with this decision and the ORDER below.

ORDER

The Agency is ordered to take the following remedial action:
1. Within sixty (60) calendar days of the date this decision becomes final, the Agency shall tender to Complainant $60,000.00 in non-pecuniary compensatory damages.
2. Within sixty (60) calendar days of the date this decision becomes final, the Agency shall tender to Complainant's attorney $114,842.48 in attorney's fees.
3. Within sixty (60) calendar days of the date this decision becomes final, the Agency shall pay Complainant backpay.
4. Within sixty (60) calendar days of the date this decision becomes final, the Agency shall place Complainant in a managerial position comparable to the one she held at the time of the discrimination at issue, outside the supervision of S1 and named Agency official.
5. Within sixty (60) calendar days of the date this decision becomes final, the Agency shall provide training for the Responsible Management Officials.
6. Within sixty (60) calendar days of the date this decision becomes final, the Agency shall expunge evaluation reports of any documents referencing the administrative investigation from Complainant's personnel file.
7. Within sixty (60) calendar days of the date this decision becomes final, the Agency shall amend Complainant's performance evaluation to reflect a highly favorable evaluation.
8. The Agency shall remove the mentoring requirement imposed by management.
9. The Agency shall issue an email praising and welcoming Complainant to return to the agency.
10. The Agency shall post a notice nationwide in accordance with the paragraph below.

The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented.

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 its FEMA offices nationwide, 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 (K0610)

Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File A Civil Action."29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. TV 1999).If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See29 C.F.R. § 1614.409.

STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0610)

 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. See29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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. See29 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. See29 C.F.R. § 1614.604(c).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610)

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 (Z0610)

If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c).The grant or denial of the request is within the sole discretion of the Court.Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File A Civil Action").

FOR THE COMMISSION:

Carlton M. Hadden
Director
Office of Federal Operations

[FN1]. On December 10, 2008, Complainant filed a cross-appeal, on a standard appeal form without further elaboration. However, on January 21, 2009, Complainant submitted a brief requesting that the Agency's appeal be denied and indicating full support for the AJ's decision. Therefore, we will assume Complainant has raised no independent objections on appeal regarding the AJ's decision.

[FN2]. The AJ's decision indicates that S1 was involved in the "do cumenting" of these complaints.

[FN3]. The AJ noted that S1 stated that the female employee was let go several weeks later for "lack of work."