0720110022
02-01-2012
Delores M. Pritchett, Complainant, v. Mike Donley, Secretary, Department of the Air Force, Agency.
Delores M. Pritchett,
Complainant,
v.
Mike Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0720110022
Hearing No. 480-2009-0667X
Agency No. 5K0M06016
DECISION
Together with the issuance of its Final Order on March 8, 2011, the
Agency filed the instant appeal. On appeal, the Agency requests that
the Commission affirm its rejection of an EEOC Administrative Judge's
(AJ) finding of 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. Following the issuance of the Agency’s
Final Order, Complainant filed her appeal regarding the AJ’s findings
of no discrimination on Complainant’s complaint and further challenges
the AJ’s award of compensatory damages. For the following reasons,
the Commission AFFIRMS in part and REVERSES in part, the Agency’s
Final Order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was
a GS-5 Secretary (Office Automation), Fire Operations Organization,
452d Civil Engineering Squadron, Air Force Reserve Command, March Air
Reserve Base, California. On August 24, 2006, Complainant filed an EEO
complaint alleging that she was discriminated against on the bases of race
(African-American), color (black), and in reprisal for prior protected
EEO activity (arising under Title VII). The AJ defined the claims as
the following:
1. On July 9, 2006, Complainant was reassigned from one unit at
March Air Reserve Base (ARB) to another unit at the same Air Force base,
but within the same position, grade, and series;
2. Complainant was detailed as a GS-06 secretary but not paid level
GS-06 pay; and
3. Complainant was subjected to a hostile work environment.
The AJ held a hearing on December 14 and 15, 2010, and issued a Decision
on January 24, 2011. AJ’s Decision, (AJ Decision), January 24, 2011.
Regarding claim (1), the Agency maintained that there are three
GS-5 secretaries within the engineering squadron at March Air
Reserve Base. Complainant, an African American, worked in the fire
department. C1, a Hispanic individual, worked in general engineering.
C2, an Asian/Pacific Islander, worked in the environmental branch of
engineering. Complainant’s second level supervisor, S2, decided to
rotate the three secretaries so they could become proficient in each
other's duties. During the first phase of the rotations, Complainant was
reassigned to the position in general engineering and C1 was placed in
the fire department. C2 was not initially reassigned. According to the
Agency, this was because C2 had only been in the job for a year.
In his Decision, the AJ found that Complainant did not establish a prima
facie case of retaliation with respect to claim (1) because Complainant
did not show that S2 was aware of Complainant’s prior EEO activity
and because Complainant did not express to S2 that she believed any of
S2’s actions prior to July 9, 2006 (initial date of reassignment),
were motivated by her race, color, or any other basis for discrimination.
AJ Decision at 15, 16.
Regarding claim (1), the AJ found that Complainant did establish that
she was treated differently than C1 or C2 with respect to the rotation
of secretaries among the units supervised by S2. Specifically, the AJ
found that both Complainant and C1 were initially rotated from their
assigned units to other units for one year. Subsequently, Complainant
and C2 were rotated to another unit during the second year. However,
C1 was returned to her original unit after the initial year of the
rotation, and only Complainant was reassigned to other units for two
years. Complainant was therefore treated differently than C1 and C2,
and neither employee is in the same protected racial and color groups
as Complainant. Id. at 19. The AJ observed that S2 stated her reasons
for implementing the rotation were to allow the GS-5 secretaries to train
in the various units (Engineering Flight, Fire Protection Flight, and
Environmental Flight) so that they could fill in for each other during
any absence. The AJ found the evidence did not support S2’s claim
that problems had occurred in the past when a secretary from one unit
(or “flight”) needed to fill in for a secretary in another unit.
Id. at 21. The AJ, however, found that Complainant did not present
evidence that more likely than not S2’s reasons for initiating the
GS-5 secretarial rotation were based on her race or color. Id.
The AJ found that S2’s reasons for implementing the rotation were not
entirely believable in light of the manner in which the rotation was
ultimately carried out. Specifically, the AJ noted that the proposed
rotation impacted three secretaries and three positions, which should have
allowed S2 to rotate all three employees through the units in the same
manner. However, C2 was not rotated at all during the first rotation,
and served in the rotation for one month during the second rotation.
Id. at 22. C1 was not rotated during the second rotation at all, but
was allowed to return to her original assignment.
Ultimately, Complainant was the only secretary to serve two full
rotations away from her original assignment. Additionally, while S2
was not aware of Complainant’s prior EEO activity at the time she took
steps to initiate the rotation in June 2006, Complainant contacted an EEO
Counselor shortly after the rotation began. Complainant had expressed to
S2 her dislike for the rotation and engaged in the EEO process in July
and August 2006. S2 was clearly aware of Complainant’s EEO activity
at that juncture and her desire not to be rotated. The AJ found that
C1 and C2 were treated more favorably than Complainant and that S2’s
decision to reassign Complainant away from her original position for the
second rotation and twice as long as any other secretary was motivated
by reprisal. Id. at 22.
The AJ further found that Complainant did not establish a prima facie
case of race or color discrimination with respect to claim (2) because
Complainant failed to show that she was treated differently than other
employees who were similarly detailed to the higher level position.
For the same reasons as in claim (1), the AJ also found that Complainant
did not establish a prima facie case of retaliation. The AJ found that
even if Complainant had presented such evidence, the Agency established
by uncontroverted evidence that its policy was not to provide GS-6 level
pay to employees in Complainant’s position so detailed. Id. at 18.
Complainant did not present any evidence that the Agency had deviated
from this policy and the AJ concluded that Complainant’s race, color,
or retaliation did not play any role in the Agency’s decision to deny
her GS-6 level pay when she was detailed to the identified position.
Id. at 19.
Regarding claim (3), the AJ found that the incidents described in the
complaint did not rise to the level of harassment and that Complainant
did not establish a prima facie case of race or color harassment.
In particular, the AJ noted that although Complainant believed that
she was being reassigned to a unit known for poor treatment of minority
employees, Complainant was not herself subjected to unwelcome comments
or harassment. Id. at 21, 22. Additionally, the incidents Complainant
described that occurred between herself and S2 (initially denied leave
which was later approved and asked to organize or clean an office),
and between Complainant and C3 (S2’s secretary) (unduly criticized
Complainant’s work product), were neither frequent nor severe.
Id. at 22.
The AJ concluded that Complainant had failed to establish discrimination
with respect to claims (2) and (3) on any basis and that Complainant had
established reprisal discrimination (but not race or color discrimination)
with respect to claim (1) to the extent that Complainant was subjected
to reprisal regarding the extent and duration of the identified rotation
and reassignment. Id. at 24, 30.
As a remedy, the AJ ordered the Agency to pay Complainant non-pecuniary,
compensatory damages in the amount of $2,000; to provide appropriate EEO
training for S2; and to post a notice at the Agency that discrimination
had occurred. Id. at 30.
The Agency subsequently issued a Final Order implementing the AJ’s
findings of no discrimination and rejecting the AJ’s finding that
Complainant proved that the Agency subjected her to reprisal regarding
the extent and duration of the reassignment described in claim (1). Agency
Final Order, March 8, 2011, Record on Appeal (ROA) at 339.
CONTENTIONS ON APPEAL
On appeal, the Agency states that the claim upon which the AJ found
reprisal discrimination did not even occur until more than a year after
Complainant filed her complaint, was not a claim accepted by the Agency,
and was not investigated. Agency’s Brief on Appeal, March 28, 2011
at 1. The Agency also disputes the award of compensatory damages.
On appeal, Complainant states that the AJ should have found race and color
discrimination occurred and that the AJ improperly denied Complainant the
opportunity to establish S2’s history of racial bias in the workplace.
Complainant further states she concurs with the finding of discrimination
regarding the “fourth issue” (the duration of the reassignment) and
argues that the AJ should have ordered the Agency to pay compensatory
damages in the amount of $25,000 as a reasonable award. Complainant’s
Brief on Appeal, March 22, 2011 at 1, 2.
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). A finding regarding
whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's
conclusions of law are subject to a de novo standard of review, whether
or not a hearing was held.
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 § VI.B. (November
9, 1999).
To prevail in a disparate treatment claim such as this, Complainant
must satisfy the three-part evidentiary scheme fashioned by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Complainant must initially establish a prima facie case by demonstrating
that he or she was subjected to an adverse employment action under
circumstances that would support an inference of discrimination. Furnco
Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie
case will vary depending on the facts of the particular case. McDonnell
Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency
to articulate a legitimate, nondiscriminatory reason for its actions.
Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
To ultimately prevail, Complainant must prove, by a preponderance of
the evidence, that the Agency’s explanation is pretextual. Reeves
v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097
(2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
To establish a claim of harassment a complainant must show that:
(1) they belong to a statutorily protected class; (2) they were
subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained
of was based on their statutorily protected class; (4) the harassment
affected a term or condition of employment and/or had the purpose or
effect of unreasonably interfering with the work environment and/or
creating an intimidating, hostile, or offensive work environment;
and (5) there is a basis for imputing liability to the employer.
See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further,
the incidents must have been "sufficiently severe or pervasive to alter
the conditions of [complainant's] employment and create an abusive working
environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).
The harasser's conduct should be evaluated from the objective viewpoint of
a reasonable person in the victim's circumstances. Enforcement Guidance
on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6
(Mar. 8, 1994).
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request
No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in
accordance with the burdens set forth in McDonnell Douglas, Hochstadt
v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324
(D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep’t of
Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant
may establish a prima facie case of reprisal by showing that: (1)
he or she engaged in a protected activity; (2) the agency was aware
of the protected activity; (3) subsequently, he or she was subjected
to adverse treatment by the agency; and (4) a nexus exists between the
protected activity and the adverse treatment. Whitmire v. Dep’t of
the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
In the instant case, we find that the AJ’s Decision is supported by
substantial evidence in the record and we decline to disturb the AJ’s
findings that no discrimination occurred on the bases of race or color
with regard to the complaint.
Claim (1)
The Agency argues that the AJ found no discrimination in claim
(1) and found retaliation for a claim not raised, accepted, or
investigated. The Commission’s review of the AJ’s decision finds
that the confusion in this matter arose in the definition of claim
(1). Claim (1) as defined by the AJ in the beginning of the decision
was simply too narrow. Claim (1) never only concerned the July 9, 2006
reassignment of Complainant. After reviewing the record, it is clear
to the Commission that Complainant always intended claim (1) to concern
the whole rotational, reassignment process that commenced July 9, 2006.
That issue, the continuing reassignment process, was clearly investigated
and considered at the hearing. The Agency should have reasonably been on
notice that this issue was being considered by the AJ. Thus, we reject
the Agency’s argument that the finding of discrimination was based on
a fourth claim that was not part of the complaint.
We find that the AJ properly found no discrimination regarding the
commencement of the July 9, 2006 rotational reassignment. We agree
with the AJ that Complainant did not establish a prima facie case of
retaliation regarding the July 9, 2006 rotational reassignment because
there is no evidence that S2 was aware of Complainant’s prior EEO
activity or opposition to discrimination. Claim (1) however, concerns
the rotational reassignments after July 9, 2006 as well. We find that
substantial evidence supports a finding of retaliation regarding this
portion of claim (1). We note, as did the AJ, that both Complainant
and C1 were experienced Agency secretaries of sufficient tenure so as to
call into question S2’s decision to implement the rotation at all, as
well as S2’s decision to continue the rotations when S2 became aware
of resistance from Complainant. We find the AJ properly considered
S2’s motivation throughout the rotation “training period.” We
find, as did the AJ, that the allegations in Complainant’s complaint
call into question S2’s reasons for initiating the rotation, for
specifically reassigning Complainant as she did (as opposed to C1 and C2).
We decline to disturb the AJ’s findings that the evidence undermined
the credibility of its witnesses sufficient for Complainant to show
that reprisal motivated the Agency’s decision regarding the extent
and duration of the rotation/reassignments. We find that substantial
evidence supports the AJ’s finding that Complainant showed that
retaliation motivated S2’s decision to continue rotating Complainant
(and the decisions on the duration of the rotations) after S2 was informed
that Complainant was opposed to her rotations and had contacted an EEO
Counselor. We also agree with the AJ that Complainant failed to show
that any of the rotations or the duration of rotations was motivated by
race or color discrimination.
Claims (2) and (3)
We find that Complainant did not identify any similarly situated employees
who were treated better than she was with respect to the salary issue in
claim (2). We find no evidence that the Agency detailed other employees
to the GS-6 secretarial position who received higher level pay when
Complainant did not. Therefore, we find that the AJ properly found no
discrimination for claim (2).
Regarding the alleged harassment in claim (3), we concur with the
AJ that the incidents Complainant describes in her complaint were
not so severe or frequent so as to alter the terms and conditions of
Complainant’s employment. Specifically, Complainant alleges that
although she had been approved for leave in September 2007, by S1, S2
subsequently cancelled Complainant’s leave. Complainant protested
the cancellation of her leave and that leave was ultimately approved.
Hearing Transcript (Hr’g Tr), December 14, 2010, at 34. Additionally,
we note, as did the AJ, that despite her fears that she would encounter
unwelcome and hostile comments when she was reassigned to the Engineering
Flight in 2006, that Complainant was not subjected to such comments.
Id. at 39, 109 et seq. Complainant alleged that she was subjected to
the harassment by S2 through a coworker, C3, who disturbed Complainant
by questioning her secretarial skills such as appropriate correspondence
style. We find no evidence that the described behavior was motivated
by Complainant’s race, color, or reprisal, and we further find that
the incidents, separately, or in light of Complainant’s other claims,
do not rise to the level of harassment. Therefore, we find that the
AJ properly found no discrimination for claim (3).
Compensatory damages
Compensatory damages may be awarded for the past pecuniary losses,
future pecuniary losses, and non-pecuniary losses which are directly or
proximately caused by an agency's discriminatory conduct. EEOC Enforcement
Guidance: Compensatory and Punitive Damages Available under § 102 of
the Civil Rights Act of 1991, EEOC Notice No. 915.002, at II.A. (July
14, 1992).
Objective evidence of compensatory damages can include statements from
an employee concerning his emotional pain or suffering, inconvenience,
mental anguish, loss of enjoyment of life, injury to professional
standing, injury to character or reputation, injury to credit standing,
loss of health, and any other non-pecuniary losses that are incurred as a
result of the discriminatory conduct. Statements from others, including
family members, friends, health care providers, or other counselors
(including clergy) could address the outward manifestations or physical
consequences of emotional distress, including sleeplessness, anxiety,
stress, depression, marital strain, humiliation, emotional distress,
loss of self-esteem, excessive fatigue, or a nervous breakdown. Lawrence
v. U.S. Postal Serv., EEOC Appeal No. 01952288 (Apr. 18, 1996) (citing
Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993)).
Evidence from a health care provider or other expert is not a prerequisite
for recovery of compensatory damages for emotional harm. The employee's
own testimony, along with the circumstances of a particular case,
can suffice to sustain his burden in this regard. The more inherently
degrading or humiliating an agency's action is, the more reasonable it
is to infer that a person would suffer humiliation or distress from that
action. The absence of supporting evidence, however, may affect the amount
of damages appropriate in specific cases. See Banks v. U.S. Postal Serv.,
EEOC Appeal No. 07A20037 (Sept. 29, 2003) (citing Lawrence v. U.S. Postal
Serv., EEOC Appeal No. 01952288 (Apr. 18, 1996)).
In support of her claim, Complainant provided her own testimony and notes
from her medical provider excusing her from work. Hr’g Tr. December 14,
2010 at 57; Complainant’s Hearing Exhibits 19A and 19B. Complainant
attested that she suffered emotional harm when she learned she was being
reassigned to the Engineering Flight because she feared being placed
in an environment where other employees had been subject to unwelcome
comments and conduct. She therefore felt apprehensive, anxious, and
had feelings of uncertainty regarding her position with the Agency. Id.
Based on our review of the evidence and in light of the Commission's cases
regarding non-pecuniary, compensatory damages awarded for emotional harm,
we find that the AJ's award of $2,000 in non-pecuniary, compensatory
damages is consistent with Commission precedent. See Parnofiello
v. Dep't of Justice, EEOC Appeal No. 01A04204 (Mar. 30, 2001) ($2,000
in non-pecuniary, compensatory damages awarded for discriminatory
non-selection based on employee's statements of the interference with
family relations and anxiety). Accordingly, considering the nature,
duration, and severity of Complainant's emotional harm and with reference
to damage awards reached in comparable cases, the Commission finds
that the AJ's award of $2,000 in non-pecuniary, compensatory damages
was proper.
Attorney’s Fees
Complainant had requested $250 in reimbursement for a consultation fee
she paid to a law firm. The AJ rejected this request on the grounds
that the law firm never represented Complainant. We agree with the AJ
that no reimbursement should be awarded because Complainant was never
represented by an attorney. See Nunez-Mattocks v. Department of Energy,
EEOC Appeal No. 0120062340 (June 1, 2007).
CONCLUSION
We AFFIRM the Agency’s Final Order finding no discrimination for claims
(2) and (3) and the portion of claim (1) concerning the July 9, 2006
rotational reassignment. We also AFFIRM the Agency’s Final Order finding
no race or color discrimination the portion of claim (1) concerning the
rotational assignments and duration of the rotations after July 9, 2006.
We REVERSE the Agency’s Final Order regarding the portion of claim (1)
alleging retaliation in the rotational assignments and duration of the
rotations after July 9, 2006. We REMAND the complaint to the Agency to
implement the relief ordered by the AJ, as slightly modified herein.
ORDER
The Agency shall take the following remedial actions:
1. Within 30 days of the date this decision becomes final, the
Agency shall pay Complainant non-pecuniary, compensatory damages in the
amount of $2,000.
2. Within 180 days of the date this decision becomes final, the Agency
shall provide EEO training to the responsible management officials,
including S2, regarding their responsibilities under EEO laws and the
prohibition against retaliation for protected EEO activity.
3. Within 180 days of the date this decision becomes final, the
Agency shall consider taking appropriate disciplinary action against
the responsible management officials, including, S2. The Agency shall
report its decision to the Compliance Officer, referenced herein. If the
Agency decides to take disciplinary action, it shall identify the action
taken. If the Agency decides not to take disciplinary action, it shall set
forth the reason(s) for its decision not to impose discipline. If any of
the responsible management officials have left the Agency's employment,
then the Agency shall furnish documentation of their departure date(s).
The Agency shall send evidence that they have complied with this Order
to the Compliance Officer as referenced herein.
POSTING ORDER (G0610)
The Agency is ordered to post at its March Air Reserve Base copies of
the attached notice. Copies of the notice, after being signed by the
Agency's duly authorized representative, shall be posted by the Agency
within thirty (30) calendar days of the date this decision becomes final,
and shall remain posted for sixty (60) consecutive days, in conspicuous
places, including all places where notices to employees are customarily
posted. The Agency shall take reasonable steps to ensure that said
notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
ATTORNEY'S FEES (H0610)
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.
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. 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.
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. See 29
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.
See 29 C.F.R. § 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (T0610)
This decision affirms the Agency’s final decision/action in part, but it
also requires the Agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion of
your complaint which the Commission has affirmed and that portion of the
complaint which has been remanded for continued administrative processing.
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 your appeal with the Commission, until such time as the Agency
issues its final decision on your complaint. 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 (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
February 1, 2012
__________________
Date
2
0720110022
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
12
0720110022