0120122196
10-24-2012
Roland Coronado, Complainant, v. Michael B. Donley, Secretary, Department of the Air Force, Agency.
Roland Coronado,
Complainant,
v.
Michael B. Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120122196
Hearing No. 451-2011-00289X
Agency No. 8Z0J10037
DECISION
On April 30, 2012, Complainant filed an appeal from the Agency's March 30, 2012, final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, the Commission AFFIRMS in part and REVRSES in part the Agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Carpenter, WG-4607-09, at the 802nd Civil Engineer Squadron, Zone 4, Lackland Air Force Base in Texas.
Believing he was subjected to discrimination based on his disability (diabetes) and in reprisal for his prior protected EEO activity, Complainant initiated contact with an EEO Counselor on June 24, 2010. Thereafter, Complainant filed an EEO complaint dated September 27, 2010, which was subsequently amended, alleging that the Agency discriminated against him when:
1. Supervisor 1 did not allow Complainant to participate in physical training on June 22, 2010, based on his disability (diabetes).
2. Supervisor 1 subjected Complainant to a hostile work environment in reprisal for his prior protected EEO activity when:
a. On September 21, 2010, Supervisor 1 informed Complainant that Person A would no longer be his immediate supervisor;
b. On September 9, 2010, Supervisor 1 issued Complainant a work order requiring him to work alone;
c. On August 13, 2010, Supervisor 1 called Complainant into Person B's office and asked if Complainant said negative things about his supervisor;
d. On August 12, 2010, Supervisor 1 stated to the group of maintenance mechanics, including Complainant, that individuals who file EEO or union complaints "are not men and have no integrity;"
e. On August 11, 2010, Supervisor 1 told Complainant that he had to go to Supervisor 1 before filing either an EEO complaint or union grievance;
f. From June 24, 2010, to the present, Supervisor 1 checks on Complainant twice a day;
g. On July 1, 2010, Supervisor 1 came from the other side of traffic and stopped a foot away from Complainant's vehicle to ask what Complainant was doing; and
h. On June 30, 2010, Supervisor 1 pointed at Complainant in the break room in front of Person A and said "I have a bone to pick with you."1
3. The Agency subjected Complainant to a hostile work environment because of disability (diabetes) and in reprisal for prior protected EEO activity when Complainant did not receive an award with his fully successful annual performance rating in June 2011.
4. The Agency subjected Complainant to a hostile work environment based on his disability (diabetes) and in reprisal for prior EEO activity when Complainant's work schedule was changed from a nine hour day to an eight hour day on August 29, 2011.
5. The Agency subjected Complainant to a hostile work environment because of his disability (diabetes) when:
a. In June 2010, Complainant was told, "Then you will make it eight people working at the site and you can just run around the truck for exercise and that will be your PT;" and
b. In March 2010, Complainant was asked for clarification of his 2006 doctor's note which stated Complainant could not work alone.2
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing and the AJ held a hearing on January 12 - 13, 2012. The AJ issued a decision on February 15, 2012.
In her decision, the AJ found Complainant, who has diabetes and is insulin dependent, was a qualified individual with a disability. The AJ found that Complainant filed a prior EEO complaint on March 9, 2007, and then one on April 17, 2008, against the supervisor who preceded Supervisor 1. The AJ found that Supervisor 1 became Complainant's first-level supervisor in December 2009.
With regard to issue (1), the AJ noted under Agency policy, if employees followed protocol, supervisors could allow employees to use three hours of duty time each week for physical training. The AJ found that for several weeks after June 17, 2010, Supervisor 1 did not allow Complainant to participate in physical training. The AJ noted that at the hearing, Supervisor 1 testified that he prohibited the group, not just Complainant, to participate in physical training for several weeks because they failed to follow protocol in regards to signing in and out as instructed. The AJ found that the record showed that Supervisor 1 allowed two employees, Employee 1 and Employee 2, to participate in physical training during the time Complainant and others in the group were not allowed to participate. The AJ found that with the exception of Employee 1 and Employee 2, Supervisor 1 did not allow anyone else in the group to attend physical training, and thus, that he did not single out Complainant because of his disability.
With regard to issue (2)(a), the AJ found that during mediation, Complainant and the Agency agreed that Person A, rather than Supervisor 1, would be Complainant's supervisor. The AJ noted that according to the agreement reached, Supervisor 1 would assign Complainant work orders, but Person A would actually supervise Complainant. The AJ noted that the evidence showed that Complainant never signed the agreement, and, for this reason, Supervisor 1 remained Complainant's supervisor.
With regard to issue (2)(b), the AJ found that on September 9, 2010, Supervisor 1 issued Complainant a work order that would have required him to work alone on a project. The AJ noted that when Complainant brought it to Supervisor 1's attention that Complainant should not work alone because he might have a diabetic episode, Supervisor 1 found medical documentation from 2007, which recommended, as a precautionary measure, that Complainant work in the presence of another employee. The AJ noted that Complainant claimed that Supervisor 1 should have known of the medical documentation and should have known that Complainant, who had a diabetic episode at the workplace in 2009, should not work alone. However, the AJ did not reach this conclusion. The AJ stated she believed Supervisor 1 when he testified that he did not know of the 2007 recommendation until it was brought to his attention in September 2010. Additionally, the AJ found that Supervisor 1 rescinded the work order and there was no evidence that he ever again issued a work order requiring Complainant work without a partner.
With regard to issue (2)(c), the AJ noted that on August 13, 2010, Complainant was called into Person B's office and met with Person A, Person B, and Supervisor 1. The AJ found that the record showed that while Person A called Complainant into the meeting, Person B was the one who actually arranged the meeting. The AJ found that Person B testified that Supervisor 1 and several of Complainant's co-workers, including Co-worker 1 and Co-worker 2, told him that Complainant, evidently after mediation, told co-workers that he "beat [S1]," and made negative remarks about Supervisor 1. The AJ stated the purpose of Person B's meeting was to put a stop to the comments.
With regard to issues (2)(d) and (2)(e), the AJ noted that Complainant stated that on August 11 and 12, 2010, Supervisor 1 told his subordinates that those who file EEO complaints or union grievances were "not men and had no integrity." The AJ noted Complainant also stated that Supervisor 1 said employees must go through him to go to the EEO Office. The AJ found the record showed that Supervisor 1 told the employees that they were not men and had no integrity if they did not talk to Supervisor 1 before going to the EEO Office, and that Supervisor 1 also told them they must go through him before going to the EEO Office. The AJ noted that while Supervisor 1 had a need to know, for scheduling purposes, if an employee was going to the EEO Office during duty hours, he did not need to know the reason for the employee going to the EEO Office. The AJ found that Supervisor 1's comments were made by him in an effort to discourage the filing of EEO complaints.
With regard to issue (2)(f), the AJ found Complainant's claim that Supervisor 1 checked up on him twice a day after he filed his EEO complaint, was corroborated by the Administrative Assistant working for Supervisor 1's group. The AJ noted that according to the Administrative Assistant, Supervisor 1 constantly checked on Complainant, particularly after Complainant filed the EEO complaint, and Supervisor 1 did not like for employees to file EEO complaints or grievances. The AJ found that Supervisor 1 was irritated that Complainant filed the EEO complaint and that, more than likely, for that reason he frequently checked up on Complainant.
With regard to issue (2)(g), the AJ noted that on July 1, 2010, Supervisor 1, driving a maintenance vehicle, drove toward and stopped dangerously close to an Agency compact truck which Complainant was driving and in which Co-Worker 3 was riding. The AJ found that Supervisor 1 did stop bumper to bumper with the compact truck; however, the AJ did not find that this was done because of a prohibited factor.
With regard to issue (2)(h), the AJ noted that on June 30, 2010, Supervisor 1, in passing Complainant in the break room, pointed his finger at Complainant and said "I have a bone to pick with you." The AJ noted that while it was clear that Supervisor 1 pointed his finger at Complainant and made the statement, the evidence showed that Supervisor 1 did not follow up on the comment with a meeting or indicate the reason he had a "bone to pick" with Complainant. The AJ said that for purposes of her decision, she will assume that Supervisor 1 made the comment because Complainant filed an EEO complaint a few days before the incident.
With regard to issue (3), the AJ noted that while Complainant received a fully successful annual performance rating in June 2011, he did not receive an award. The AJ noted that the evidence showed that the first line supervisor was the recommending official for awards. However, the AJ also noted that if the next level supervisor believed that an employee should receive an award, that level supervisor could make the recommendation. The AJ found there was insufficient evidence to rebut the testimony that Complainant had been on light duty during the rating period, primarily answering telephones, and that neither Supervisor 1 nor Person B believed Complainant merited an award.
With regard to issue (4), the AJ noted that the evidence showed that Person B instructed supervisors to remove all light duty employees from the alternate work schedule. The AJ noted that for this reason, Complainant, who was on light duty, was removed from the alternate work schedule, and required to work eight hours a day, five days a week. The AJ found there was no evidence that Complainant was required to work eight hours a day, five days a week, for a discriminatory reason.
With regard to issue (5)(a), the AJ found the evidence indicated that in June 2010, Supervisor 1 told Complainant to go to the Medina Annex, and Complainant responded that there were already seven employees working on the problem at the Medina Annex. The AJ noted that at that point, Supervisor 1 said "then you will make it eight people and you can just run around the truck for exercise and that will be your PT." The AJ found that the remark had nothing to do with Complainant's disability or EEO activity but was said because Supervisor 1 knew it would irritate Complainant.
With regard to issue (5)(b), Complainant claimed that in March 2010, he was asked for clarification of his 2006 doctor's note which stated he could not work alone. The AJ noted that there was a note in Complainant's medical file, dated September 5, 2007, and signed by a Registered Nurse, which stated, "[Complainant] has recently increased his efforts to improve his diabetes management. He had an episode of hypoglycemia or low blood sugar August 29, 2007, requiring medical assistance. This is expected to be an isolated incident, as his medication has been adjusted to prevent further occurrences. As a precautionary measure, we would recommend that [Complainant] work in the presence of another employee." The AJ did not find the requirement to clarify and update the note to be discriminatory.
The AJ stated she was persuaded that Supervisor 1 tried to dissuade employees from filing EEO complaints by his comments that those who file EEO complaints are not men and have no integrity, and Supervisor 1's wanting to know the reason an employee would go to the EEO office. The AJ also noted the credible evidence showed that Supervisor 1 checked up on Complainant several times a day because Complainant filed an EEO complaint. The AJ concluded that these comments, along with the comment "I have a bone to pick with you," and checking up on Complainant, were not actionable because they were not sufficiently pervasive or severe enough to alter the conditions of Complainant's employment.
The Agency subsequently issued a final order on March 30, 2012. The Agency's final order fully implemented the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
On appeal, Complainant claims the AJ erred as she failed to analyze the Agency's actions as independent actionable acts of reprisal. Complainant argues the AJ also erred in fragmenting
his hostile work environment claim and failing to consider the Agency's unlawful policy requiring employees to speak with their supervisors prior to contacting EEO.
In response to Complainant's appeal, the Agency argues the AJ's decision finding no discrimination was supported by a preponderance of evidence. Specifically, with regard to issues (2)(d) and (2)(e), the Agency noted that the AJ found that Supervisor 1 told a group of employees that he supervised that those who file EEO complaints without talking to him first are not men and have no integrity. The Agency noted that the AJ found that the statements were made in an effort to discourage the filing of EEO complaints; however, the Agency stated that the AJ found the statements were not directed at Complainant personally and were not made in retaliation for Complainant having filed a complaint. Additionally, with regard to issue (2)(f), the Agency noted the AJ found Supervisor 1 did check on Complainant more frequently after he filed his EEO complaint and that he did so because he was irritated that Complainant had filed one. However, the Agency argues that there was no finding that Supervisor 1 ever took any action against Complainant. The Agency claims that the more frequent supervision was a trivial annoyance and not actionable.
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).
At the outset, we note that although the AJ addressed issue (4) in her decision, this issue was withdrawn by Complainant in his closing statement. Thus, we will not address issue (4) in this decision.
Additionally, we note that Complainant does not challenge the AJ's dismissal of his claims that he was denied overtime in September 18-19, 2010, or his claim that in March 2010, he was moved from the Vertical Shop. The Commission has the discretion to review only those issues specifically raised in an appeal. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, 9-10 (November 9, 1999). Accordingly, we will not address the AJ's dismissal of these two claims.
For purposes of this decision, the Commission assumes without deciding that Complainant is a qualified individual with a disability. We note that Complainant is not alleging that he was denied a reasonable accommodation.
After a careful review of the record, the Commission finds that the AJ's findings of fact with regard to issues (1), (2)(a), (2)(b), (2)(c), (2)(g), (2)(h), (3), (5)(a), and (5)(b) are supported by substantial evidence in the record and that the AJ's decision properly summarized the relevant facts and referenced the appropriate regulations, policies, and laws. Additionally, we find substantial evidence supports the AJ's decision that Complainant was not subjected to harassment based on his disability or in reprisal for protected EEO activity.
In addition to examining issues (2)(d), (2)(e), and (2)(f) as part of Complainant's overall claim of retaliatory harassment, we find these issues should also be examined individually.
Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, and the Rehabilitation Act prohibit an employer from retaliating against an employee for engaging in protected activity. A Complainant can establish a prima facie case of reprisal 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. 802 (1973)). Specifically, in reprisal, and in accordance with the burdens set forth in McDonnell Douglas and Coffman v. Dep't of Veterans Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) complainant engaged in protected activity; (2) the agency was aware of the protected activity; (3) subsequently, complainant 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). A nexus may be shown by evidence that the adverse treatment followed the protected activity within such a period of time and in such manner that a retaliatory motive may be inferred. See Clay v. Dep't of the Treasury, EEOC Appeal No. 01A35231 (Jan. 25, 2005). See Clark County Sch. Dist. v. Breeden, 532 U.S. 268 (2001) (finding that a three-month period was not proximate enough to establish a causal nexus).
We note that the Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. EEOC Compliance Manual, Section 8: Retaliation, No. 915.003, at 8-13 (May 20, 1998); see Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 67 (2006) (finding that the anti-retaliation provision protects individuals from a retaliatory action that a reasonable person would have found "materially adverse," which in the retaliation context means that the action might have deterred a reasonable person from opposing discrimination or participating in the EEO process). The statutory retaliation clauses prohibit any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity. Lindsey v. U.S. Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999).
In the present case, the record reveals that on August 10, 2010, Supervisor 1 was contacted via electronic mail by the EEO Counselor and informed that the EEO Counselor would be meeting with Complainant on August 11, 2010. Substantial evidence supports the AJ's finding that on August 11 and 12, 2010, Supervisor 1 told his subordinates that those who file EEO complaints or union grievances without coming to him first were "not men and had no integrity" and that they must go through him before going to the EEO Office. We agree with the AJ that while Supervisor 1 had a need to know, for purposes of scheduling work, if an employee was going to the EEO Office during duty hours, he did not need to know the reason for the employee going to the EEO Office. In the present case, we find that the comments made by Supervisor 1 would deter a reasonable person from opposing discrimination or participating in the EEO process. Given the close proximity, at most a day or two, between the notice from the EEO Counselor that Complainant had an EEO appointment and the statements made by Supervisor 1, we find a nexus exists between the protected activity and the adverse treatment. Moreover, we determine that substantial evidence supports the AJ's finding that Supervisor 1 made these comments in an effort to discourage the filing of EEO complaints and thus, had a retaliatory motive for making these comments. As part of the remedy we shall order the Agency to inform the employees in Complainant's office that they do not need to inform supervisors of their reasons for visiting the EEO office or even get permission to visit the EEO office unless they need to do so for scheduling reasons.
With regard to issue (2)(f), Complainant alleged that following his June 24, 2010 initial contact with an EEO Counselor, to the present, Supervisor 1 checked on him twice a day. We find that the record supports the AJ's finding that Supervisor 1 was notified of Complainant's EEO Counselor contact shortly after Complainant contacted the counselor. We note that on appeal, the Agency does not challenge this finding by the AJ. The record reveals that the Administrative Assistant corroborated Complainant's allegation that Supervisor 1 checked on Complainant more frequently after he filed his EEO complaint and testified that she believed that after Complainant filed his EEO complaint, he was subjected to more scrutiny by Supervisor 1. Despite the Agency's argument to the contrary, we find that being checked on twice a day by a supervisor and being subjected to increased scrutiny by a supervisor on a continuing basis is reasonably likely to deter a reasonable person from engaging in protected EEO activity. We find that substantial evidence supports the AJ's finding that Supervisor 1 was irritated that Complainant filed the EEO complaint and that more likely than not, for that reason, he frequently checked up on Complainant. Thus, we find that the incident in claim 2(f) was motivated by retaliation for Complainant's prior protected activity .
CONCLUSION
Accordingly, the Agency's finding of no discrimination with regard to issues (1), (2)(a), (2)(b), (2)(c), (2)(g), (2)(h), (3), (5)(a), and (5)(b) is AFFIRMED. The Agency's finding of no discrimination with regard to issues (2)(d), (2)(e), and (2)(f) is REVERSED and we REMAND the matter to the Agency for compliance with the Order herein.
ORDER
The Agency shall take the following actions:
1. Within 60 days of the date this decision becomes final, the Agency shall conduct a supplemental investigation to determine whether Complainant is entitled to compensatory damages incurred as a result of the Agency's discriminatory action. The Agency shall allow complainant to present evidence in support of his compensatory damages claim. See Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (January 5, 1993). Complainant shall cooperate with the Agency in this regard. The Agency shall issue a final decision addressing the issues of compensatory damages no later than 60 days after the Agency's receipt of all information. The Agency shall submit a copy of the final decision to the Compliance Officer at the address set forth herein.
2. Within 180 days of the date this decision becomes final, the Agency shall provide training to the responsible management officials regarding the obligation not to 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 under, the Federal equal employment opportunity laws.
3. Within 60 days of the date this decision becomes final, the Agency shall consider taking disciplinary action against the management officials identified as being responsible for the discrimination perpetrated against Complainant. The Commission does not consider training to be a disciplinary action. The Agency shall report its decision to the Commission and specify what, if any, action was taken. If the Agency decides not to take disciplinary action, then it shall set forth the reasons for its decision not to impose discipline.
4. Within 30 days of the date this decision becomes final, the Agency shall, in writing, inform the employees in Complainant's office that they do not need to inform supervisors of their reasons for visiting the EEO office or even get permission to visit the EEO office unless they need to do so for scheduling reasons.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include evidence that the corrective action has been implemented.
POSTING ORDER (G0610)
The Agency is ordered to post at its Lackland Air Force Base facility in Texas 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
October 24, 2012
__________________
Date
1 Complainant's claim of harassment based on reprisal initially included an additional claim that Complainant was denied overtime on September 18 - 19, 2010. At the hearing, an Administrative Judge (AJ) determined this issue was not appropriate for hearing.
2 Complainant's claim of harassment based on disability initially included an additional claim that in March 2010, Complainant was moved from the Vertical Shop. The Agency dismissed this claim for untimely EEO Counselor contact and the AJ upheld the Agency's dismissal.
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01-2012-2196
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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