EEOC Appeal No. 0120140090
04-21-2017
Leanne H. v. Soc. Sec. Admin.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Leanne H.,1
Complainant,
v.
Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120140090
Hearing No. 520-2012-00117X
Agency No. BOS-11-0580-SSA
DECISION
Complainant timely filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission MODIFIES the Agency's final order.
ISSUE PRESENTED
The issue presented is whether there are genuine issues of material fact that require a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Senior Case Technician (SCT) at the Agency's Office of Disability Adjudication and Review (ODAR) in Providence, Rhode Island. Report of Investigation (ROI), at Ex. 4. Complainant had worked as a SCT for approximately 20 years. ROI, Ex. 9a.
On May 5, 2011, Complainant met with her first-level supervisor (S1) to discuss her Performance Assessment and Communication System (PACS) mid-year review. ROI, Ex. 10. During the mid-year review discussion, S1 expressed to Complainant that she was deficient in all of her performance standards, and discussed with Complainant what she needed to work on to improve her performance. Id. According to S1, deficiencies in Complainant's performance were reported by Administrative Law Judges (ALJs), other management team members, contract experts, and colleagues. Id. The Chief ALJ averred that he sent e-mails to S1 regarding problems with Complainant's performance, including less-than-timely preparation of materials for scheduled hearings and failure to follow e-business process procedures. ROI, Ex. 12.
According to Complainant, in May 2011, S1 would call her into her (S1's) office every day, two to four times a day, saying she (Complainant) was not performing, had a bad attitude, and was not friendly with her coworkers. ROI, Ex. 9a. On one occasion, on May 6, 2011, S1 called Complainant into her office and told Complainant an ALJ had requested that someone else sit-in on his hearing. Id. Complainant averred that she was upset and offended that the ALJ would request someone other than her to monitor his hearing. Complainant apparently later spoke with the ALJ who reportedly stated that he had not requested that someone else do the hearing. Id. S1 averred that there were times when Complainant may have been called into her office throughout the day to discuss separate performance issues. ROI, Ex. 10. S1 indicated that Complainant frequently made payment errors that required prompt correction to make sure that payments were timely made to contractors. Id. S1 indicated that it was Complainant's actions, or lack thereof, that determined the frequency of the meetings. Id.
Complainant further averred that the Acting Hearing Office Director (AHOD), in a loud and unprofessional manner, said that she (Complainant) could not use the speaker phone in the reception area. ROI, Ex. 9a. However, according to the AHOD, Complainant responded to her in a disrespectful and unprofessional manner while working at the reception desk. ROI, Ex. 11. The AHOD stated that as she approached the reception area, she could hear a caller on the telephone speaking very loudly. Id. The AHOD then stated that she immediately asked Complainant to remove the telephone from speaker mode. Id. The AHOD averred that rather than removing the telephone from speaker mode, Complainant yelled "Why" in response. Id. The AHOD then apparently responded to Complainant that Personal Identifiable Information (PII) information was inappropriately being broadcasted throughout the reception area. Id. The AHOD indicated that she then left the reception area and returned a short time later, but the phone was still on speaker mode. Id. Complainant was then apparently called into S1's office over the matter and was told that she had no right to question the AHOD. Complainant indicated that S1 therein told her that if she ever got loud with the AHOD again, she would be written-up and suspended. ROI, Ex. 9a.
On June 13, 2011, S1 issued Complainant a Notice of Proposed Suspension for five days, charging her with engaging in discourteous, disrespectful, and unprofessional conduct. ROI, Ex. 21a. Therein, S1 noted that when Complainant was asked about the status of an invoice for translator services, Complainant shouted that she had left a voice message. Id. In the Suspension, S1 further wrote that when she reminded Complainant to be clearer in her e-mails, Complainant then responded, "I don't need you telling me how to write e-mails," and stormed out of her (S1's) office. Id. S1 reported that a few minutes later Complainant returned to her (S1's) office slammed a paper down on her desk and yelled, "Here's your invoice!" Id. S1 explained that she then approached Complainant, saying her action of the slamming the invoice was inappropriate behavior, but Complainant grabbed another sheet of paper, slammed it down forcefully, shouting "this is slamming." Id. S1 also cited to an incident on June 2, 2011, wherein S1 called Complainant into her office to discuss incomplete documentation on multiple invoices. Id. Therein, according to S1, Complainant became angry and hostile, stating that she was inappropriately being blamed. Id. Complainant also apparently stood up, faced the door, and turned her back for the remainder of the conversation with S1.
Subsequently, on July 1, 2011, S1 had a performance discussion with Complainant regarding a pile of over 200 CDs on Complainant's desk, which Complainant had been reportedly accumulating for three months. ROI, Ex. 10. The CDs contained the PII and medical information of claimants. Id. S1 discussed with Complainant that it was improper for her to keep the CDs on her desk for that amount of time, which should have been logged-in, accounted for, and disposed of in conformance with Agency policy. ROI, Ex. 9a. Complainant did not deny keeping the CDs on her desk, but averred that other employees keep such CDs on their desks as well. Id. Complainant further averred that some of the CDs on her desk were actually assigned to other SCT's who were instead responsible for disposal. Id. In describing the CD disposal process, a fellow SCT explained that each CD is logged-in before mailing it to the experts and, on the day of a hearing, the experts give the CD back to the responsible SCT who logs the date that the CD was returned and then disposes of it in a shredder. ROI, Ex. 15.
On July 11, 2011, Complainant was issued a Suspension for five days, signed by the AHOD. ROI, Ex. 21c. The Suspension cited to the matters in the June 13, 2011, proposal. Id. On August 5, 2011, Complainant received S1's written comments with respect to her mid-year performance review. ROI, Ex. 17b. However, Complainant refused to sign the performance review due to S1's comments about the over 200 CD's on her desk, containing the PII of claimants. Id.
On May 9, 2011, Complainant contacted an EEO Counselor and filed an EEO complaint on August 5, 2011, alleging that the Agency discriminated against her on the bases of race (African-American), age (58), and reprisal for prior protected EEO activity2 when:
1. On May 5, 2011, she received an unfavorable Performance Assessment and Communication System (PACs) review;
2. In May 2011, she was required to constantly attend meetings; and
3. On June 13, 2011, she was issued a Notice of Proposed Five Day Suspension, and on July 11, 2011, she was issued a Five Day Suspension, effective July 18, 2011.
4. On August 5, 2011, she received a second unfavorable PACs review.3
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the case issued a notice of intent to issue a decision without a hearing to the parties. Complainant submitted her response that opposed the issuance of a decision without a hearing on July 9, 2013.4
Complainant's July 9, 2013, Opposition to Summary Judgment
In opposition to Summary Judgment, Complainant asserted that there are clearly genuine issues of material facts in dispute and credibility issues, such that a decision without a hearing would be improper. Complainant specifically asserted that S1 provided statements contradictory to the evidence in the record. Complainant contended that S1 denied having knowledge of her prior EEO activity, but was named as the responsible management official in Agency Case No. BOS-06-2453. Complainant also asserted that S1 submitted a statement to the EEO Counselor therein, and believes that S1 denied knowledge of her prior protected EEO activity to cover-up her retaliatory motives for her actions in the instant case. Complainant further contended it was common practice for employees to have CDs on their desks, yet she was the only one who was disciplined for this practice. Complainant stated she was subjected to retaliatory harassment at the hands of S1, and she has been placed on an unofficial performance assistance plan. Complainant asserted that S1 has bullied, micromanaged, and embarrassed her by constantly holding meetings with her to discuss her performance, leave, and conduct.
AJ's Decision
The AJ subsequently, over Complainant's objections, issued a decision without a hearing on August 12, 2013. The AJ found that Complainant did not establish disparate treatment or a hostile work environment based on her protected classes. The AJ found no evidence that any of the alleged incidents were based on Complainant's race, age, or prior protected EEO activity. The AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions, which Complainant did not dispute. The AJ further found that the incidents alleged here were not sufficiently severe and pervasive enough to rise to the level of a hostile work environment. With respect to Complainant's May 5, 2011, unfavorable PACs Review, the AJ noted that Complainant's workplace performance deficiencies were documented in e-mails from ALJs and management team members to S1. The AJ noted that Complainant's own e-mails also showed that she had performance issues. The AJ cited to an e-mail from Complainant on February 2, 2011, to S1, wherein Complainant admitted that she was aware of certain overdue items.
With respect to the August 5, 2011, unfavorable PACs review, the AJ noted that Complainant asserted that employees outside of her protected classes leave CDs on their desks as well, but nothing is said to them. The AJ noted that Complainant named two other SCTs who possibly had several dozen CDs on their desks, and an Administrator who had approximately 100 CDs on her desk. The AJ noted however that these employees were not valid comparators to Complainant, indicating a significant difference between a few CDs left on someone's desk versus over 200. The AJ also observed that the Administrator held a different position than Complainant. The AJ found no evidence that S1's discussion with Complainant over the CDs rose to the level of a hostile work environment or was motivated based on her protected classes. The AJ found it reasonable for S1 to have meetings with Complainant in May 2011, given the "344 pages" of e-mails from various employees regarding work related problems with Complainant. The AJ noted that not only Complainant, but other employees were called into S1's office whenever there was a performance issue.
The AJ also noted that Complainant admitted much of her conduct in her response to the Suspension. Regarding Complainant's allegation of retaliatory harassment, the AJ noted that five years had passed between Complainant's previous 2006 EEO activity and the 2011 events in the instant complaint. The AJ observed that while Complainant contacted an EEO Counselor on May 10, 2011, concerning the instant complaint, she does not say when or how her supervisors learned of this contact. The AJ noted that although S1 may have learned of Complainant's present EEO complaint on July 6, 2011, the only action S1 took afterward was holding the performance discussion with Complainant regarding the CD's, and adding the incident to her performance review on August 5, 2011. The AJ therefore found that Complainant did not establish that she was subjected to discrimination or harassment as alleged.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination or harassment as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant, through her representative, contends that there are material facts in dispute that require a hearing before an AJ. Complainant asserts that the record is incomplete, as it does not contain any statements from witnesses who are similar to her. Complainant argues that management was aware that she previously engaged in EEO activity in August 2006. Complainant further contends that she filed a grievance on the five-day Suspension in July 2011, and the arbitrator reduced the five-day Suspension to a reprimand because the Agency failed to impose progressive discipline for her conduct. Complainant argues that her grievance constituted protected EEO activity because she filed it protesting the Agency's discriminatory actions. Complainant avers that S1's constantly calling her into her (S1's) office, sometimes several times a day, is harassment and reprisal for her prior EEO activity. Complainant asserts that S1 treats her differently and closes her door during meetings, unlike with other employees. Complainant maintains that S1 and other management officials continue to scrutinize her work more than other employees.
Complainant further indicates that mental and physical disabilities caused her to take sick leave for several weeks. Complainant asserts that upon her return to work, management requested excessive medical documentation from her. Complainant asserts that after her doctor refused to provide the necessary medical documentation to support her leave, the Agency charged her with 165 hours of Absence Without Leave (AWOL).
STANDARD OF REVIEW
In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, � VI.B. (Aug. 5, 2015) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis -- including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, � VI.A. (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law"). We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record.
ANALYSIS AND FINDINGS
AJ's issuance of a Decision without a Hearing (Summary Judgment)
We must first determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving parry's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case.
If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a bearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [parry opposing summary judgment] has not had the opportunity to discover information that is essential to her opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
In the instant case, we find that the AJ properly issued a decision without a hearing with respect to Complainant's claims of disparate treatment and harassment based on race and age. We find however that the AJ erred in issuing a decision without a hearing regarding Complainant's claims of reprisal. Specifically, we find there are material facts in dispute, the record is not fully developed, and the credibility of witnesses is at issue with respect to Complainant's claims of reprisal, as explained below.
Race and Age Discrimination
Complainant may establish a prima facie case of age and/or race discrimination by providing evidence that: (1) she is a member of a protected class; (2) she was performing competently in the position she held; (3) she suffered an adverse employment action; and (4) either that similarly situated individuals outside her protected class were treated differently, or other circumstances surrounding the adverse employment action give rise to an inference of discrimination. Reeves v. Sanderson Plumbing, 530 U.S. 133, 142 (2000); Littlejohn v. City of New York, 795 F.3d 297, 307 (2nd Cir. 2015); EEOC Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 6-5, n.2 (as revised, August 5, 2015).
Upon review, we find that Complainant has not met prong 4 above, and therefore has not established establish a prima facie case of age discrimination. In so finding, we note that Complainant has not specifically identified any similarly situated individuals significantly younger than her who were treated more favorably. In addition, there is simply nothing in the record to reflect that Complainant's race was a factor in any of the Agency's actions here, and therefore we find that she has not established an inference of racial discrimination. We note that Complainant alleges that she "heard racial slurs made in the office," and the "N word" used on certain occasions. However, Complainant does not name who made these alleged derogatory slurs or when they were made. Further, no witnesses in the record suggested that any such comments were made. Also, while not dispositive, we note that S1 is of the same protected basis (African-American) as Complainant, and she names S1 as the responsible management official herein. The AHOD is of the same protected class of Complainant as well. Therefore, like the AJ, we find that Complainant has not established that she was subjected to discrimination based on race and/or age as alleged.
Reprisal for Prior Protected Activity
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) she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, 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).
Upon review, we find that there are genuine issues of material fact in dispute as to whether Complainant established a prima facie case of discrimination based on reprisal. In so finding, we note that S1 falsely affirmed in her affidavit that her "first knowledge of any EEO activity engaged in by the Complainant came on July 6, 2011 . . ." ROI, Ex. 10. at 3. However, S1 was named as the responsible management official for Complainant's August, 24, 2006, EEO contact, and was interviewed by an EEO Counselor at that time. ROI, Ex. 24, at 2. Notwithstanding, the AJ found that five years had passed between Complainant's previous 2006 EEO activity and the 2011 events in the instant complaint, and therefore Complainant did not establish a nexus upon which retaliation could be inferred. We note however that temporal proximity is not the only way one may establish that a nexus existed. Walton v. Dep't of Army, EEOC Appeal No. 0120072925 (July 10, 2012). Further, Complainant maintained that she also contacted an EEO Counselor in 2010, but the record is absent of this information. It is unclear if S1 was aware of this 2010 reported protected activity as well.
In addition, we also note that Complainant was issued the Notice of Proposed Five Day Suspension about a month after her EEO Counselor contact for the instant complaint. Given S1's untruthful affidavit that she was not aware of Complainant's 2006 EEO activity, we find that S1's credibility is at issue here as to whether she was aware of Complainant's May 9, 2011, EEO Counselor contact when issuing her the Notice of Proposed Five Day Suspension.
Once Complainant establishes a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). With regard to claim 1, S1 explained that deficiencies in Complainant's performance were reported by ALJs, other management team members, contract experts, and colleagues. ROI, Ex. 10, at 6. With respect to claim 2, S1 averred that there were times when Complainant may have been called into her office throughout the day to discuss separate performance issues. S1 explained that Complainant would frequently make errors that required prompt correction to ensure that payments were timely made to contractors. Id. at 8. S1 averred, with regard to claim 3, that Complainant acted in an unprofessional manner, as cited the Notice of Proposed Suspension. Id. at 11. Regarding claim 4, S1 explained that a performance discussion was held with Complainant concerning 251 CDs containing PII claimant information, which Complainant did not properly dispose of in accordance with Agency policy. Id. at 6-7.
However, as S1 falsely attested that she had no knowledge of Complainant's 2006 EEO activity, we find that this makes S1's credibility an issue and puts the Agency's legitimate nondiscriminatory reasons here in dispute concerning potential retaliatory animus towards Complainant. As such, we find that S1's credibility must be assessed through a live hearing.
We further find there are genuine issues of material fact in dispute as to whether Complainant established that S1's legitimate, nondiscriminatory reasons are pretext for discrimination based on reprisal. Specifically, for example, on May 6, 2011, S1 called Complainant into her office and told Complainant that an ALJ had requested that another SCT monitor his scheduled hearing. ROI, Ex. 9a, at 12. Complainant averred that she later spoke with the ALJ on May 10, 2011, who stated that he had not requested that another SCT monitor his hearing. Id. Complainant attested that management instead told the ALJ that another SCT would be assigned without reason. Id. We note, however, that the EEO Investigator did not obtain the ALJ's affidavit for the record, and therefore we find that the record is incomplete as to this matter.
In addition, in an Arbitrator's decision dated June 28, 2013, the Agency was found to have improperly issued Complainant the five-day suspension because the Agency failed to progressively discipline her. We note that indicators of pretext may include unequal application of Agency policy, or deviations from standard procedures without explanation or justification. Mellissa F. v. U.S. Postal Service, EEOC Appeal No. 0120141697 (Nov. 12, 2015).
Furthermore, S1 affirmed that it was improper for Complainant to keep the CDs on her desk for that amount of time, which should have been logged-in, accounted for, and disposed of in conformance with Agency policy. ROI, Ex. 9a. Complainant however did not deny keeping the CDs on her desk, but averred that other employees keep such CDs on their desks as well. Id. Complainant further averred that some of the CDs on her desk were actually assigned to other SCT's who were instead responsible for disposal. Id. Lastly, we note that a Paralegal observed that Complainant had been called into S1's office more than other employees. ROI, Ex. 14, at 3. Furthermore, in e-mails from Complainant dated July 1, 2011, Complainant reported, among other things, that the Paralegal said that S1 instructed her that she was not allowed to speak with Complainant. ROI, Ex. 4, at 20.
In sum, there are simply too many unresolved issues which require an assessment as to the credibility of S1, other management officials, coworkers, and Complainant herself. As such, we find that a decision on the merits of Complainant's complaint is improper at this juncture. We find the AJ erred in issuing a decision without a hearing as to Complainant's claims of reprisal.
CONCLUSION
Based on a thorough review of the record, the Commission MODIFIES the Agency's final order. The Commission AFFIRMS the Agency's final order regarding Complainant's claims of discrimination based on race and age, but VACATES the Agency's final order regarding Complainant's claims of discrimination based on reprisal. The Commission REMANDS Complainant's claims based on reprisal to the Agency in accordance with this decision and the Order below.
ORDER
The Agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit within fifteen (15) calendar days of the date this decision becomes final. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall hold a hearing and issue a decision on the complaint in accordance with 29 C.F.R. � 1614.109 and the Agency shall issue a final action in accordance with 29 C.F.R. � 1614.110.
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 (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
4-21-2017
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 Complainant previously contacted an EEO Counselor on August 24, 2006, Agency No. BOS-06-2453, wherein she named S1 as the responsible management official.
3 The Agency's letter accepting Complainant's complaint improperly notes that Complainant received the second unfavorable PACs review on July 1, 2011.
4 On July 24, 2013, that Agency submitted its rebuttal response.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120140090
9
0120140090