E.E.O.C. Office of Federal Operations Barbara M. Hashimoto, Appellant, v. H. Lawrence Garrett, III, Secretary, Department of the Navy, Agency. Request No. 05900823 Appeal No. 01900697 Agency Nos. 89-239; 89-240 Hearing Nos. 091-88-X1918; 091-86-X1945 December 31, 1990 GRANTING AND DENIAL OF REQUEST TO REOPEN INTRODUCTION On June 6, 1990, Barbara M. Hashimoto (hereinafter referred to as the appellant), through her Representative, timely initiated a request to the Equal Employment Opportunity Commission (EEOC) to reopen and reconsider the decision in Barbara M. Hashimoto v. H. Lawrence Garrett, III, Secretary, Department of the Navy, EEOC Appeal No. 01900697 (May 8, 1990). EEOC Regulations provide that the Commissioners may, in their discretion, reopen and reconsider any previous decision when the party requesting reopening submits written argument or evidence which tends to establish one or more of the three criteria prescribed by 29 C.F.R. 1613.235(b).1 The appellant bases her request on 29 C.F.R. 1613.235(b) (2) (the previous decision involved an erroneous interpretation of law or regulation or misapplication of established policy), and 29 C.F.R. 1613.235(b)(3) (the decision is of such exceptional nature as to have effects beyond the actual case at hand). For the reasons set forth herein, the appellant's request is granted in part and denied in part. ISSUE PRESENTED The issue presented herein is whether the Commission's previous decision correctly determined that appellant was not subjected to discriminatory and retaliatory treatment in connection with the allegations raised in her complaints dated April 3, 1986 and October 4, 1988. BACKGROUND Appellant filed two formal EEO complaints with the agency. In the first complaint dated April 3, 1986, appellant alleged that she had been subjected to race (Japanese), and sex (female) discrimination and reprisal (prior EEO activity) when she was: (a) suspended for five days on January 27, 1986, due to her purported refusal to obey her supervisor's written and verbal orders; (b) notified on February 18, 1986, that her within grade increase (WGI) would be withheld due to her alleged unsatisfactory performance; (c) issued a notice of suspension for 14 calendar days on February 18, 1986, for failing to obey orders; and (d) notified on February 18, 1986, that her position would be abolished.2 In her second complaint dated October 21, 1988, appellant alleged that she was subjected to reprisal (prior EEO activity) when the Morale Welfare and Recreation Director (hereinafter MWR Director), gave her a negative character reference and divulged that she had engaged in EEO activity to a prospective employer from the Department of the Army (hereinafter Army), in an attempt to blackball her from obtaining gainful employment. In response to appellant's complaints, the agency issued proposed agency decisions in July of 1988 and February of 1989, proposing findings of no discrimination or reprisal. Appellant was dissatisfied with these proposed agency decisions and at her request, her complaints were forwarded to an Administrative Judge (AJ) of the EEOC for a hearing. At the hearing stage, appellant's complaints were consolidated and the AJ rendered a recommended decision (RD) finding no discrimination or reprisal. Specifically, the AJ found that appellant had failed to show by a preponderance of the evidence that her five day suspension was taken for unlawful reasons. Similarly, the AJ found that appellant's 14 day suspension was proper. In connection with this allegation, the AJ also found that the testimony of appellant's first line supervisor (the Special Service Officer or SSO) was more credible than her testimony. Further, the AJ found that appellant experienced performance problems which justified the denial of her WGI. Additionally, the AJ found that although it was unfortunate that the MWR Director mentioned appellant's EEO activity in his contacts with the Army, his mentioning of this fact was not retaliatory in nature. Moreover, the AJ found that the Supervisory Budget Analyst, Army selecting official, credibly testified that his non-selection of appellant was based solely on her past disciplinary record. In its final agency decision (FAD) dated October 23, 1989, the agency adopted the RD of the AJ. In its previous decision, the Commission affirmed the FAD. With respect to her first complaint, the Commission found that appellant failed to establish a prima facie case of discrimination in connection with her suspension or denial of her WGI. Further, the Commission found that appellant did not establish a prima facie case of reprisal in connection with any of the allegations she raised in her first complaint because she had not filed any prior EEO complaints. With respect to appellant's second complaint, the Commission found that appellant established a prima facie case of reprisal, but had failed to show that the reasons articulated by the agency for its actions were pretextual. Consequently, the Commission did not ascribe any unlawful motives to the actions of the MWR Director. Appellant began her tenure with the agency on April 2, 1984, as a Budget Assistant GS-07. As a result of RIF procedures, appellant was separated from the agency on June 2, 1986. From all indications, appellant's brief tenure with the agency was a turbulent one. Besides her suspension, appellant was counseled, given a letter of caution and formally reprimanded for her conduct. The letter of caution was issued to appellant on February 5, 1985, due to her refusal to carry out the verbal and written instructions of the SSO.3 On May 21, 1985, appellant contacted an EEO Counselor regarding her title, her position description, and her performance appraisal. Although appellant indicated that her problems in these areas were not really an EEO matter, the EEO Counselor characterized her contact as a 'Potential EEO Complaint.' Both the MWR Director and the SSO were made aware of appellant's contact with the EEO office. According to appellant, she worked on July 28, 1984, which was a Saturday. Although she was told that she could not earn overtime for that day, appellant averred that she was told that she was entitled to compensatory time. It was not until over a year later, in November of 1985, that appellant claimed credit for that day on her timecard. Appellant was told by the SSO to remove the time from her timecard and she refused. Appellant stated that she would not have attempted to recoup this time except that she was being treated badly and she wanted to express her discontent. It is also established that in November of 1985, appellant was directed by the SSO to deliver paychecks to the library and she refused. Appellant averred that she inquired why she had to deliver paychecks to the library when there was a driver who could do it faster. Appellant also averred that there were no paychecks to be delivered on the day in question. By memorandum dated December 3, 1984, the SSO directed appellant to provide him with daily briefings in order to provide adequate supervision of funds. Appellant refused to attend these meetings, describing them, inter alia, as daily combat between her and the SSO. Appellant also testified that no other employee was required to brief the SSO on a daily basis. (Hearing Transcript (H.T.) p. 298). On cross-examination, however, appellant conceded that two other employees under the direct supervision of the SSO (a military staff person and the civilian Recreation Director), gave daily briefings to the SSO. (H.T. pp. 299-300). It is also established that appellant was ordered on December 1, 1985, to prepare a turnover file for the Fiscal Clerk position and she failed to carry out this order. In response to this charge, appellant averred that she was never instructed4 to prepare a turnover file, but rather a Letter of Instruction. With respect to her failure to prepare the Letter of Instruction, appellant argued that she needed, but did not receive more time, clarity, and guidance from the SSO.5 After appellant was separated from the agency, she submitted an application for a Budget Clerk position with the Army. According to the Supervisory Budget Analyst (SBA) of the Army, based on a negative character reference he received from the MWR Director, he decided not to hire appellant. However, the SBA indicated that appellant's EEO activity was not a factor in his decision not to hire her. (H.T. p. 386). The MWR Director conceded in his testimony that he told the SBA of appellant's EEO activity while she was employed at Camp Smith. However, the MWR Director testified that he made mention of appellant's EEO activity because appellant had challenged her suspension on EEO grounds and an Investigator had found that her allegations of discriminatory treatment were unfounded. (H.T. pp. 510-511). Additionally, the MWR Director testified that he informed the SBA that appellant had another complaint pending investigation. Id. It is also established that based on a recommendation of the MWR Director, the SBA sent him a notice of employment inquiry so that the (the MWR Director) could put his negative character reference of appellant in writing. (H.T. p. 512).6 Nevertheless, the MWR Director testified that appellant's prior EEO activity did not play a role in the type of reference that he provided to the Army. (H.T. p. 515). Contrary to his testimony at the hearing, in his affidavit to the EEO Investigator, the MWR Director averred that he had not discussed appellant's EEO activity with the SBA. (Ex. 7 p. 2, File 2). When this inconsistency in his testimony was brought to his attention, the MWR Director indicated that the affidavit was written by the EEO Investigator and not by him. (H.T. pp. 509-10). Although he signed and made several corrections of his affidavit, the MWR Director averred that he simply overlooked this portion of the document. (H.T. p. 510). At the hearing a Personnel Staffing Specialist (PSS) of the Army testified that the MWR Director called her office and recommended that the Army not hire appellant. (H.T. pp. 53-4). The PSS indicated that she found the MWR Director's message to be unusual because it was unsolicited. In his testimony, the MWR Director admits that he called the Army's civilian personnel office in an attempt to locate the SBA. (H.T. p. 513). However, he denied that he told the PSS that the Army should not hire appellant. (H.T. p. 530). Rather, the MWR Director averred that he told the PSS that he had negative information regarding the appellant which he wanted to put in writing. (H.T. pp. 530-1). In an affidavit associated with appellant's first complaint (designated as Agency No. 89-239), the MWR Director was asked by the EEO Investigator to '(p)lease give the appropriate date and circumstances by which (he) became aware of (appellant's) participation in protected EEO activity.' In response to this question, the MWR Director responded that he did not 'know what 'EEO protected activities' are...' (Ex. 12 p. 10 File 1). At the hearing, the MWR Director was asked by the AJ if he now knew what protected EEO activities were and the MWR Director indicated that he did not. (H.T. p. 543). In an earlier affidavit associated with appellant's second complaint (designated as Agency No. 89-240), however, the MWR Director averred that he 'believed in the EEO process,' which he equated with the military MASO process. According to the MWR Director, the MASO process, was a mechanism which he himself had used in the past. (Ex. 7 File 2). In her request to reopen (RTR), appellant argues that the Commission's previous decision is flawed because it relied solely on the tripartite analytical scheme established in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973) and its progeny, while it ignored the analytical framework and standards established in more recent Supreme Court cases such as Price Waterhouse v. Hopkins, 109 S. Ct. 1775 (1989). In this respect appellant argues that she was entitled to bypass the McDonnell Douglas analytical framework with respect to her first complaint because there was direct evidence of discrimination. The direct evidence of discrimination, according to appellant, lies in the fact that both the SSO and the MWR Director allegedly submitted perjured testimony. According to appellant, the Commission's previous decision failed to take cognizance of this perjured testimony because it engaged in a 'slavish adherence' to the testimony of the agency's officials. Further, appellant argues that the Commission's previous decision erroneously assumes that perjury can only be shown through documentary evidence or testimony from other witnesses, instead of through the internal inconsistencies and contradictions of the agency officials' testimony. In the alternative, appellant argues that if the McDonnell Douglas analytical framework was to be employed, she met her burden of showing pretext because she succeeded in showing that the testimony of the SSO and the MWR Director was unworthy of credence. Similarly, with respect to her second complaint, appellant argues that the Commission failed to find that the reasons articulated by the agency were pretextual because it ignored the contradictions and inconsistencies in the testimony of the agency's witnesses. Appellant also characterizes her second complaint as a mixed motives case and objects that the Commission did not rely on the analytical framework established in Price Waterhouse in discussing this portion of her consolidated complaint. In response to appellant's RTR, the agency argues that appellant fails to raise any issues of fact or law which are deserving of the Commissioners' attention. The agency also argues that appellant's RTR is a mere reiteration of the arguments previously rejected by the Commission. Accordingly, the agency urges the Commission to deny appellant's RTR. ANALYSIS AND FINDINGS Upon reviewing appellant's RTR, as well as the remainder of the record, the Commission finds that there is insufficient evidence for us to disturb our previous finding that appellant was not subjected to retaliatory or discriminatory treatment in connection with the personnel actions challenged in her first complaint. With respect to her second complaint, however, the Commission finds that there is sufficient evidence on record showing that appellant was subjected to retaliatory treatment. It is for these reasons, as well as for the reasons discussed below that we grant appellant's RTR in connection with her second complaint and deny her RTR in connection with her first complaint. FIRST COMPLAINT Although we affirm the results in our previous decision, we disagree with the finding therein that appellant did not establish a prima facie case of reprisal with respect to the allegations raised in her first complaint. The Commission has interpreted 704(a) of Title VII in a very broad manner to provide protection for employees who engaged in oppositional or participatory Title VII activity. See EEOC Compliance Manual 614.1(a). Among other things, the Commission considers the filing or threatening to file an EEO complaint to be oppositional activity,. See EEOC Compliance Manual 614.5(b) (1); Gifford v. Atchinson, Topeka and Santa Fe Railway Co., 685 F.2d 1149, 1156 n. 3 (9th Cir. 1982). Despite appellant's failure to file an EEO complaint, when she contacted the EEO Counselor in May of 1985, she clearly meant for her contact to put the SSO on notice that she would file an EEO complaint if he did not redress what she perceived to be deficiencies in her working conditions. This is evidenced by the fact that she promptly notified the SSO of her contact with the EEO Counselor. Moreover, appellant's contact with the EEO Counselor in May of 1985 was brought to the attention of the MWR Director who was given a copy of the report written by the EEO Counselor following his meeting with appellant. The EEO Counselor identified this report as appellant's 'Potential EEO Complaint.' Given these facts, as well as the close proximity of time between appellant's EEO activity and the issuance of her suspension notice in December of 1985, the Commission finds that appellant established an initial prima facie case of reprisal in connection with the allegations raised in her first complaint. See Mitchell v. Baldridge, 759 F.2d 80 (D.C. Cir. 1985). With respect to the remaining bases of the first complaint, we concur with our previous finding that there is very little evidence that would support a finding that appellant established an initial prima facie case of discrimination. Also, for the reasons discussed infra, we disagree with appellant that there is direct evidence of discrimination in her first complaint. However, in light of the fact that this first complaint was subjected to an EEO hearing, and the agency articulated reasons for its challenged actions, we find that, rather than dispose of this complaint on the grounds that appellant failed to establish a prima facie case of discrimination, the Commission should have proceeded to determine whether the reasons articulated by the agency were legitimate or a mere pretext for discrimination. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711 (1983). With respect to the allegations raised in her first complaint, the agency fully established that appellant's five day suspension was proper because: (1) she disobeyed the SSO and refused to deliver paychecks to the library, (2) she refused to provide daily briefings to the SSO; and (3) she refused to amend her timecard. Similarly, the agency argued that appellant's 14 day suspension was proper because she refused to comply with the SSO's order to prepare a turnover file. Further, the agency presented evidence to show that the denial of appellant's WGI was proper because appellant's performance was deficient in that she failed to (1) submit her reports in a timely manner; (2) conduct quarterly inventories; and (3) effectively train managers. Appellant attempted to show the reasons articulated by the agency for its actions to be pretextual by, inter alia, challenging the need, usefulness, or legality of the SSO's action. The AJ found, however, that most of appellant's testimony in this regard was not credible and found the opposing testimony of the SSO to be more worthy of credence. Although appellant argued on appeal that the AJ's findings are not deserving of deferential treatment on review, we note that it is the Commission's policy to defer to the credibility findings of the AJ absent evidence of clear error. See Ronald F. King v. Department of Justice, EEOC Request No. 05900198 (August 20, 1990). We find no evidence of record that would cause us to reverse the credibility findings made by the AJ with respect to appellant's first complaint. Consequently, we find that appellant failed to show by a preponderance of the evidence that the reasons articulated by the agency for the challenged actions in her first complaint were pretextual. SECOND COMPLAINT As in her first complaint, appellant argued that there was direct evidence of discrimination in her second complaint which triggered the burdens of proof established in Price Waterhouse. In making this argument, appellant appears to equate untruthfulness with direct evidence of discrimination. However, the Commission does not consider untruthfulness, even of a repeated nature, to be tantamount to direct evidence of discrimination. Untruthfulness goes to the question of credibility and the showing of pretext. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). Although we find that the analytical scheme articulated in Price Waterhouse is not an appropriate paradigm to analyze appellant's second complaint, we find that under the traditional tripartite test established by McDonnell Douglas and its progeny, appellant has succeeded in showing that the negative character reference given by the MWR Director to the Army was retaliatory in nature. In the discussion that follows, we will examine the evidence on record which supports our finding of reprisal. In keeping with the ruling in Aikens, as well as our previous findings that appellant established prima facie case of reprisal in connection with her second complaint, we will focus our discussion on whether the reasons articulated by the MWR Director for his action are legitimate, or merely a pretext for reprisal. There is some inconsistency in the MWR Director's testimony regarding his reference to appellant's EEO activity in his communications with the SBA. In his affidavit, the MWR Director indicated that he made no mention of appellant's EEO activity to the SBA. At the EEO hearing, however, the NWR Director concedes that he did discuss appellant's EEO activity with the SBA. Although he did not give an express reason as to why he made mention of this fact to the SBA, his response suggests that he discussed this matter because appellant had challenged the agency's disciplinary actions in the EEO forum, but an investigation had purportedly found that her allegations of discriminatory treatment were unfounded. (H.T. p. 511). With respect to his written character reference, in which mention was also made of appellant's EEO activity, the MWR Director indicated that his aim was to be as accurate and thorough as he possibly could. (Ex. 7 p.2 File 2). As found by the AJ, the mere act of the MWR Director mentioning appellant's EEO activity to the SBA may not have been sufficient to support a finding of reprisal. Given the MWR Director's active role in reporting appellant's EEO activity and in recommending that he be given the opportunity to put his negative character reference of appellant in writing, however, we find that he went beyond what was required of him as a recommending official. Further evidence of the activist role taken by the MWR Director in this matter is his call to the Army's civilian personnel office volunteering to give negative information about appellant. Added to the activist role taken by the MWR Director in his efforts to prevent appellant from being hired by the Army, are the numerous inconsistencies in his testimony. As aforementioned, the MWR Director had previously testified that he did not discuss appellant's EEO activity with the SBA. However, at the hearing he denied making this statement and indicated that it was made instead by the EEO Investigator. Given that the MWR Director signed and made several corrections to the affidavit that contained this inaccurate statement, we do not accept his disavowal of having made it as being credible. We also find inconsistent the fact that the MWR Director indicated that his written character reference of appellant was well thought out and that he was concerned with accuracy and thoroughness when he wrote this document. In addition, he erroneously reported therein that appellant's allegations of discriminatory treatment were found to be unfounded. At the time that the MWR Director completed the letter of inquiry from the Army, appellant's complaint was still at the investigatory stage. Another glaring inconsistency on record is the fact that the MWR Director went back and forth on whether he understood the meaning of the term protected EEO activity. In light of the inconsistencies in the MWR Director's testimony, we find that he was not a credible witness and that his articulated reasons for discussing appellant's EEO activity with the SBA are unworthy of credence. See Burdine supra. Therefore, we find that the MWR Director's character reference of appellant to the Army was tainted with retaliatory animus. In further support of this finding, we note that the MWR Director was overly zealous in his efforts to prevent the Army from hiring appellant. In reaching this finding, we recognize that we are reversing the findings of our previous decision, as well as that of the AJ. However, we find that neither the recommended decision of the AJ nor our previous decision went far enough in considering the inconsistent testimony of the MWR Director. As a final matter, the Commission notes that although we find the MWR Director was not a credible witness, there is nothing on record which would allow us to make a similar finding with respect to the SBA. The evidence shows that even absent the retaliatory actions of the MWR Director, appellant would not have been selected by the SBA due to her prior disciplinary record. The AJ found the SBA's testimony in this regard credible. (H.T. pp. 668-9). The evidence on record firmly supports this credibility finding of the AJ. Consequently, we will not disturb it. In summary, the Commission finds that appellant's RTR has failed to show that the Commission erred in previously finding that she was not subjected to discriminatory treatment in connection with her first complaint designated as Agency No. 89-239. However, with respect to appellant's second complaint, designated as Agency No. 89-240, the Commission finds that appellant has succeeded, through her RTR, to show that she was subjected to reprisal. Accordingly, that portion of appellant's RTR dealing with her first complaint is denied, while that portion of her request dealing with her second complaint is granted. CONCLUSION After a review of appellant's request to reopen, the agency's response thereto, the previous decision, and the entire record, the Commission finds that appellant's request fails to meet the criteria of 29 C.F.R. 1613.235(b) with respect to her first complaint designated as Agency No. 89-239, but that it meets the criteria of 29 C.F.R. 1613.235(b) with respect to her second complaint, designated as Agency No. 89-240. Accordingly, it is the decision of the Commission to grant appellant's request with respect to her second complaint, but to deny her request with respect to her first complaint. In keeping with this finding, the Commission also reverses those portions of the previous decision and the FAD which are inconsistent with the findings herein. This decision constitutes the final decision of the Commission in this matter. There is no further right of administrative appeal from the decision of the Commission on this request to reopen. In order to remedy its retaliatory actions against appellant, the agency shall take the actions ordered below. ORDER 1. Accordingly, that portion of the agency's decision which found that appellant was not subjected to reprisal in connection with her second complaint designated as Agency No. 89-240, is hereby REVERSED. Effective immediately, the agency shall cease and desist its practices of notifying prospective employers of its employees' or former employees' participation in protected EEO activity. Moreover, the agency is ordered to remove from appellant's personnel files, the negative character reference given by the MWR Director to the Army, which is dated August 10, 1988. Further, the agency is ordered to provide EEO training to the MWR Director and to all of the Supervisory staff of the Morale Welfare and Recreation Department of Camp Smith within 180 calendar days of its receipt of this decision. 2. The agency is directed to post at its facility at Camp Smith 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) 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 and applicants for employment 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(s) is to be submitted to the Compliance Officer at the address referred to in the Implementation paragraph within ten (10) calendar days after the expiration of the posting period. 3. If appellant has been represented by an attorney as defined by 29 C.F.R. 1613.271(d) (1) (iii), appellant shall be awarded attorney's fees under 29 C.F.R. 1613.271(d). The attorney shall submit to the agency, not the Equal Employment Opportunity Commission, Office of Review and Appeals, within twenty (20) days of the decision becoming final, the documentation required by 29 C.F.R. 1613.271(d) (2) only in relation to the services he rendered in connection with appellant's second complaint, designated by Agency No. 89-240. The agency shall process this claim within the time frames set forth in 1613.271(d)(2). 4. The agency is further ORDERED to submit a report of compliance, as provided below. The report shall include supporting documentation that the corrective action has been implemented. IMPLEMENTATION OF THE COMMISSION DECISION Under EEOC Regulations, compliance with the Commission's corrective action is mandatory. The agency must submit its final report of compliance to this Commission within thirty (30) calendar days of completing the corrective action required by this decision. See 29 C.F.R. 1613.237(b), (c) (1989). The agency's report must be forwarded to the Compliance Officer, Office of Review and Appeals, P.O. Box 19848, Washington, D.C. 20036. A copy of the report must be sent to the appellant. STATEMENT OF APPELLANT'S RIGHTS - ON REQUEST TO REOPEN RIGHT TO FILE A CIVIL ACTION You are hereby notified that there is no further right of appeal from a decision of the Commission on a Request to Reopen. You have the right to file a civil action in an appropriate United States District Court WITHIN THIRTY (30) DAYS of the date that you receive this decision. As to any claim based on the Age Discrimination in Employment Act of 1967 (29 U.S.C. 633a), you MAY have up to six years after the right of action first accrued in which to file a civil action. See Lehman v. Nakshian, 453 U.S. 156 (1981); 29 U.S.C. 633a(f) and 28 U.S.C. 2401(a). If you file a civil action, YOU MUST NAME THE PERSON WHO IS THE OFFICIAL AGENCY HEAD OR DEPARTMENT HEAD AS THE DEFENDANT IN THE COMPLAINT. Agency or department means the national organization, and not the local office, facility or department in which you might work. DO NOT JUST NAME THE AGENCY OR DEPARTMENT. You must also state the title of the official agency head or department head. Failure to provide the NAME AND OFFICIAL TITLE of the agency head or department head may result in the dismissal of your case. Fed. R. Civ. P. 25(d)(2). RIGHT TO REQUEST COUNSEL (R990) 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 THIRTY (30) DAYS from the date you receive the Commission's decision. FOR THE COMMISSION: Frances M. Hart Executive Officer Executive Secretariat U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Washington, D.C. 20507 NOTICE TO EMPLOYEES POSTED BY ORDER OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION An Agency of the United States Government This Notice is posted pursuant to an order dated by the United States Equal Employment Opportunity Commission which found that a violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq. had occurred at this facility. Federal law requires that there be no discrimination against any employee or applicant for employment because of the person's RACE, COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE or PHYSICAL or MENTAL HANDICAP with respect to hiring, firing, promotion, compensation, or other terms, conditions or privileges of employment. The Department of the Navy, will comply with such Federal law and will not take action against individuals because they have exercised their rights under the law. The Department of the Navy will comply with the corrective action ordered by the Commission. The Department of the Navy will ensure that officials responsible for personnel decisions and terms and conditions of employment will abide by the requirements of all Federal equal employment opportunity laws. The Department of the Navy, 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 1613 Footnotes 1 The Vice-Chairman of the Commission has recused herself from deciding this matter. 2 As noted in our previous decision, since the abolishment of appellant's position was due to a reduction in force (RIF) action, allegation (d) supra fell within the jurisdiction of the Merit Systems Protection Board (MSPB). Consequently, the Commission will not render a decision on allegation (d). Further, we note that the MSPB has already rendered a decision on this allegation. 3 The letter of caution noted that appellant was insubordinate because she had failed to comply with the SSO's written and verbal order to meet with him daily and to respond to an Auditor's Report. Ex. 19. 4 The memorandum directing appellant to prepare the turnover file indicated that it should be prepared as a 'Letter of Instruction.' (Ex. 1, File 1). 5 The memorandum directing appellant to prepare the turnover file also identified two coworkers who could assist her in completing this task. The memorandum also gave appellant a month to complete the turnover file. (Ex. 1, File 1). 6 As it turned out, the MWR Director was mistaken in his belief that appellant's first complaint had been fully adjudicated. When the MWR Director spoke to the SBA in August of 1988, appellant's first complaint was still in the investigatory stage.