0720170024
05-04-2016
Emelda F.,1 Complainant, v. John F. Kelly, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Emelda F.,1
Complainant,
v.
John F. Kelly,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0720170024
Hearing No. 570-2011-00588X
Agency No. HS-TSA-17808-2010
DECISION
Following its May 13, 2015, final order, the Agency filed a timely appeal pursuant to 29 C.F.R. � 1614.403(a). On appeal, the Agency requests that the Commission affirm its adoption of an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge's (AJ) finding of no discrimination, but reject the award of attorney's fees and costs as a sanction against the Agency. Complainant filed a cross-appeal on June 12, 2015, asking that the Commission reject the AJ's decision without a hearing finding no discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Program Analyst at the Agency's Transportation Security Administration Headquarters facility in Arlington, VA.
On June 28, 2010, Complainant's attorney (Attorney) contacted the Agency's EEO Office on Complainant's behalf indicating her decision to file a claim of discrimination when, on May 14, 2010, she alleged she was constructively discharged based on her sex and in reprisal for her prior EEO activity. The Agency's EEO Counselor responded to the Attorney, stating they needed Complainant to make contact. The Attorney responded by providing the Agency with Complainant's executed "Power of Attorney" naming the Attorney's firm as her legal representative.
By letter dated July 20, 2010, the Manager, Informal/ARC Division, of the EEO Office sent the Attorney a letter stating that it received Complainant's correspondence dated June 28, 2010, with her intention to file an informal complaint. However, the letter stated that Complainant did not make contact with the EEO Office and she had not signed the Agency's representative designation form identifying the Attorney and the firm as her representatives. The Attorney returned the forms requested by the EEO Office on July 23, 2010.
When the Agency took no action within 30 calendar days of Complainant's informal complaint, the Attorney filed a formal complaint on Complainant's behalf on July 28, 2010. The Attorney included another copy of the power of attorney executed by Complainant in favor of the Attorney and the firm.
In her formal complaint dated July 28, 2010, Complainant alleged that the Agency discriminated against her on the bases of sex (female) and in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. On April 15, 2010, Complainant was informed that her detail to the Pipeline Division would expire on April 22, 2010, and that management would not renew her detail.
2. On April 15, 2010, Complainant was directed to report to her former position in the Mass Transit Division, Transportation Sector Network Management, under her former supervisor (Supervisor) who was the responsible management official in her prior EEO complaint.
3. On April 23, 2010, Complainant was required to submit a medical report to her physician clearing her to return to duty in the Mass Transit Division before returning to work.
4. Between April and May 2010; Complainant was required to submit medical documentation to the Supervisor.
5. On multiple occasions between April and May 2010, Complainant was threatened that she would be considered Absent without Leave (AWOL) if she refused to communicate with the Supervisor on leave matters.
6. On May 14, 2010, Complainant was constructively discharged.
On October 8, 2010, having received no response from the Agency, the Attorney sent a letter to the Agency inquiring on the status of Complainant's formal complaint. On October 26, 2010, the Attorney received two letters from the Agency: one letter dated August 7, 2010 and a second letter dated October 25, 2010. The letters stated that the Agency refused to process the formal complaint and considered it to be an "informal" matter. The Attorney responded noting to the Agency that Complainant had made her contact with the Agency's EEO Office on June 28, 2010, and filed her formal complaint on July 28, 2010, following the Agency's failure to process the informal matter within the 30-day time period provided by regulation.
By letter dated November 8, 2010, the Agency informed Complainant that it had received Complainant's formal complaint filed on July 28, 2010, and provided Complainant with the Agency complaint number. The Agency had the matter assigned to an EEO Counselor, who conducted "informal counseling" by contacting the Agency's officials. On December 13, 2010, the Agency issued its letter accepting the complaint for investigation.
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 EEOC Administrative Judge ("AJ1"). Complainant timely requested a hearing.
During the hearing process, the parties engaged in discovery. AJ1 issued Complainant an Order to Show Cause September 13, 2013. AJ1 noted that Complainant contacted the Agency's EEO Office on July 28, 2010, beyond 45 calendar days from the date of the most recent event - namely, the May 14, 2010 constructive discharge.
On September 20, 2013, Complainant submitted a motion for sanctions for the Agency's failure to properly process her request for informal counseling in June 2010 and her formal complaint dated July 28, 2010. Complainant noted that she initiated her EEO complaint on June 28, 2010, through her attorney, well within 45 calendar days of her most recent event - the constructive discharge that was effective May 14, 2010. However, the Agency, despite being aware of Complainant's intent, failed to act until October 2010. Therefore, Complainant moved that AJ1 issue sanctions against the Agency for failure to process Complainant's claim in a timely and accurate manner pursuant to the requirements of EEOC regulations. Complainant indicated that the Agency had no basis to refuse the Attorney's submissions when the Attorney had an executed power of attorney. Instead, the Agency insisted without support that Complainant herself make contact. Complainant also noted that the Agency delayed processing by five months. Complainant requested fees and costs for the Attorney as incurred by the Agency's improper processing of counseling and the formal complaint.
The Agency responded to Complainant's motion for sanction and indicated that Complainant's contact was timely and noted that it never raised the issue of untimeliness.
On November 4, 2013, AJ1 granted Complainant's motion for sanctions. AJ1 found that the Attorney sent a letter dated June 28, 2010, to the Agency's Office of Civil Rights and Liberties clearly exhibiting Complainant's intent to commence the EEO complaint process and included an executed Power of Attorney. AJ1 determined that the Agency's initially refused to process the informal complaint, refused to recognize June 28, 2010, as the date of the initial EEO contact, and refused to recognize the July 28, 2010 formal complaint. Based on the record, AJ1 found that Complainant supported her request for sanctions and asked Complainant to provide AJ1 with fees and costs incurred by her Attorney after the Attorney's June 28, 2010, communication with the Agency. Complainant filed her petition on November 12, 2013. The Agency responded asking for denial of costs and an across-the-board reduction of fees by 50%.
Subsequently, the Agency moved for summary judgment on the merits of the complaint. Complainant responded to the Agency's motion. The matter was assigned to a new Administrative Judge ("AJ2"). AJ2 issued a decision by summary judgment in favor of the Agency on April 3, 2015.
AJ2 indicated that the decision was based on the following facts established during the investigation of the complaint. Complainant had filed a complaint of sexual harassment by the General Manager when she worked in the Mass Transit Division. She raised her complaint with the Deputy General Manager on November 5, 2009.2 As a result of the complaint, Complainant was temporarily detailed to the Pipeline Division at her own request. The General Manager was placed on administrative leave beginning November 17, 2009 and resigned in December 2009. When the General Manager was placed on leave, Complainant was to return to the Mass Transit Division. However, she believed that the Mass Transit Division became a "hostile" environment with rumors flying around the office. She was returned to the Pipeline Division assignment.
By letter dated February 27, 2010, Complainant's physician (Physician) indicated that Complainant suffered from acute anxiety, insomnia, and fatigue which began when she was moved to the Pipeline Division. He noted that she had been out on sick leave since January 22, 2010, and would remain on sick leave until she is placed in a job for which she was qualified and in which she felt competent. However, this letter was not given to Complainant until March 2010, who in turn provided it to the Agency on April 6, 2010. Complainant's last detail renewal period ran from March 23, 2010 to April 22, 2010. Complainant signed her detail form on April 12, 2010. The record indicated that during Complainant's assignment to the Pipeline Division, from November 2009 to April 2010, Complainant worked only 38 of 104 work days.
The Agency Attorney contacted Complainant who had been under the mistaken impression that she had sufficient annual leave to cover the pay period. The Agency Attorney stated that Complainant would be on leave without pay effective April 14, 2010. The Agency Attorney also stated that Complainant's detail would no longer be renewed based on the Physician's letter. At the end of April 22, 2010, Complainant would be reassigned back to her Mass Transit position. Complainant was advised to submit a medical report either clearing her to return to duty in the Mass Transit Division or justify her continued absence. Complainant responded that she wished to use any compensatory time she had available or be placed on Leave Without Pay (LWOP). Complainant, through her attorney, also expressed her dismay at the proposed reassignment back to the Mass Transit Division which she had described as a "hostile work environment." Based on Complainant's medical condition, she believed she was not able to return to work.
The Agency Attorney noted that Complainant alleged harassment by the General Manager who is no longer with the Agency. Further, she did not read the Physician's note as precluding Complainant from returning to her position in the Mass Transit Division. Complainant's Attorney advised the Agency Attorney that Complainant had no problem providing medical information, but she was concerned about confidentiality of the medical records. On May 2, 2010, the Agency Attorney asked Complainant to provide the documentation to the Supervisor and indicated there was no reason to believe that he would not safeguard the information.
On May 7, 2010, Complainant's Attorney emailed the Agency Attorney that Complainant would provide leave slips and the medical information, but due to the history in the office and the Supervisor, Complainant was not comfortable to submit documents directly to him. She also asserted that the Supervisor had a history of speaking to others and "stirring the pot." Therefore, they requested that the documentation be provided to another Agency official rather than the Supervisor. The Agency Attorney denied this request, indicating that the Supervisor was the appropriate person to receive the documentation and that failure to provide the documents would result with Complainant being charged with Absence without Leave (AWOL). On May 14, 2010, Complainant, through her Attorney, submitted her resignation and argued that the resignation constituted constructive discharge. Complainant believed that continuing to work for the Agency would be detrimental for her health.
AJ2 found that there were no material facts in dispute. AJ2 determined, based on these facts, that the Agency provided legitimate, nondiscriminatory reasons for its actions. Specifically, management determined, in light of the Physician's documentation, that Complainant could no longer continue her detail to the Pipeline Division. As such, the Agency informed Complainant that her detail to the Pipeline Division would not be renewed after it expired on April 22, 2010, as alleged in claim (1). In response to claim (2), Complainant asserted that she was reassigned back to the Supervisor who had been a responsible management official in her prior EEO complaint. The Agency noted that the Supervisor was not the responsible management official and there was no indication that the Supervisor played a part in the hostile work environment created by the General Manager. As to claim (3), Complainant alleged that she was required to provide a medical report to allow her to return to work. AJ2 noted that management showed that the Agency's leave handbook provides that for an excess of three work days, management may request an employee to submit detailed medical documentation to substantiate the absences. In claim (4), Complainant argued that she was harassed when she was required to provide medical documentation to the Supervisor. The Agency pointed again to its leave handbook. Further, AJ2 noted that Complainant provided no evidence that the Supervisor had ever violated her privacy regarding medical records. As to claim (5), AJ2 held that Complainant was directed to provide medical documentation to the Supervisor but failed to do so. As a result, she was at risk to be charged with AWOL. Based on the record, AJ2 concluded that Complainant had not shown that the Agency's actions, as described above, constituted discriminatory or retaliatory harassment. Finally, as to Complainant's claim of constructive discharge in claim (6), AJ2 held that Complainant failed to show that the Agency's actions leading up to her resignation were either sufficient to create a hostile work environment or were based on discriminatory or retaliatory factors. Accordingly, AJ2 issued a decision on the merits of Complainant's complaint concluding no discrimination or retaliation had been established
On the same day, AJ2 issued a decision on the award of Attorney's fees and costs in favor of Complainant on the motion for sanctions against the Agency. Complainant filed a petition for Attorney's fees and costs on November 12, 2013. The Agency responded on November 19, 2013. Based on the fair market rate, the Attorney's specialty in employment cases in the Washington, D.C. area, years of experience, and the hours expended, AJ2 determined that Complainant's request for fees should be reduced by 50%. AJ2 noted that the Attorney included occasions of double billing and administrative overhead. AJ2 indicated that the Attorney included items such as reviewing MSPB law on mixed-case processing, drafting an amendment for relief, and placement of a hold on overpayment collection, which were not related to the issue of the Agency's EEO Office. In addition, AJ2 noted that the Attorney did not provide support for the costs associated with copying and faxing. As such, AJ2 granted the Agency's request for an across-the-board reduction and awarded Complainant $3,492.50 in fees and $ 6.70 in costs.
The Agency subsequently issued a final order adopting AJ2's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged, but rejecting AJ2's sanction decision.
Complainant filed a cross appeal, asserting that AJ2 erred in issuing a decision without a hearing finding no discrimination. Complainant also argued that AJ2 erred in reducing the request for fees and costs for the Attorney by 50%.
ANALYSIS AND FINDINGS
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 both an AJ's decision to issue a decision without a hearing and the decision itself will 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 Chap. 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").
Sanction
We conclude that AJ2 did not abuse her discretion in granting Complainant's motion for sanctions. The Commission's regulations afford broad authority to AJs for the conduct of hearings. See 29 C.F.R. � 1614.109 et seq.; EEO MD-110 at 7-10 (Aug. 5, 2015). An AJ has inherent powers to conduct a hearing and to issue appropriate sanctions, including a default judgment. See id.; Matheny v. Dep't of Justice, EEOC Request No. 05A30373 (April 21, 2005); Rountree v. Dep't of the Treasury, EEOC Appeal No. 07A00015 (July 17, 2001).
Upon review of the record, we find that the Agency clearly improperly failed to process Complainant's initial contact on June 28, 2010. When the Agency did not engaging in the pre-complaint process within the 30 calendar days, the Attorney submitted Complainant's formal complaint on July 28, 2010. The Attorney provided executed Power of Attorney forms signed by Complainant with each of these documents. The Attorney continued to follow up with the Agency, but the Agency failed to process the informal and form complaints when the documents were filed. The only justification provided by the Agency to the AJ was its argument that the office was in flux due to vacancies. However, the Commission is not persuaded by this excuse for the Agency's failure to comply with regulations and meet its obligations. The Agency's failure to act caused Complainant to incur additional fees and costs for work done by the Attorney. As such, we find that AJ2 correctly sanctioned the Agency.
We note that AJ2 reduced the requested fees and costs pursuant to the Agency's request for a reduction. Complainant argued that AJ2 erred in reducing the requested fees by 50%. However, we find that AJ2 correctly determined that the Attorney requested payment for hours which included work that was not related to efforts to deal with the Agency's failure to properly process the request for counseling and the filing of the formal complaint. Upon review, we find that AJ2's decision to sanction the Agency and the amount of fees and costs awarded were appropriate.
Finding no discrimination without a hearing
We must determine whether it was appropriate for AJ2 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 party'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.
On appeal, Complainant argues that the AJ erred in issuing summary judgment because there are material facts at issue. However, in order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. While Complainant has, in a very general sense, asserted that facts are in dispute, she has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute.
For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor. Therefore, we find that the AJ2 properly issued a decision here by summary judgment.
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). 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). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review of the record, we find that AJ2 properly determined that the responsible management officials provided legitimate, nondiscriminatory reasons for the disputed actions. Further, the record supports AJ2's finding that Complainant failed to show that the Agency's reasons were pretext for discrimination. As such, we conclude that Complainant failed to demonstrate that she was subjected to disparate treatment in retaliation for her prior protected activity.
Harassment
It is well-settled that harassment based on an individual's prior EEO activity is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, the complainant must show that: (1) she engaged in prior EEO activity; (2) she was subjected to unwelcome conduct related to her prior EEO activity; (3) the harassment complained of was based on prior EEO activity; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance 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). 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 Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994).
In other words, to prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a "reasonable person" in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, because of her sex or prior EEO activity. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Here, the evidence of record fully supports the AJ's conclusion that Complainant established neither element.
The central question in a constructive discharge case is whether the employer, through its unlawful discriminatory behavior, made the employee's working conditions so difficult that any reasonable person in the employee's position would feel compelled to resign. Carmon-Coleman v. Dep't of Def., EEOC Appeal No. 07A00003 (Apr. 17, 2002). The Commission has established three elements which a complainant must prove to substantiate a claim of constructive discharge: (1) a reasonable person in the complainant's position would have found the working conditions intolerable; (2) conduct that constituted discrimination against the complainant created the intolerable working conditions; and (3) the complainant's involuntary resignation resulted from the intolerable working conditions. See Walch v. Dep't of Justice, EEOC Request No. 05940688 (Apr. 13, 1995).
Here, as already determined, the record fully supports the finding that Complainant failed to establish that the conduct which she asserted caused her involuntary resignation resulted from discriminatory or retaliatory animus. Without this element, Complainant cannot prove her constructive discharge claim.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we MODIFY the Agency's final order. We AFFIRM the decision concluding no discrimination/retaliation was established here. However, we REVERSE the Agency's rejection of AJ2's decision awarding Complainant Attorney's fees and costs as a sanction for the Agency's failure to process Complainant's informal and formal complaint in the manner required by EEOC regulations. We REMAND the matter in accordance with the ORDER below.
ORDER
The Agency is ordered to provide Complainant with $ 3,492.50 in attorney's fees and $ 6.70 in costs. The Agency shall pay this amount with 30 days of the date this decision is issued.
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 (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
May 4, 2016
__________________
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 The record indicated that Complainant filed an EEO complaint alleging harassment based on sex and reprisal which was dismissed by the Agency. In EEOC Appeal No. 0120102632 (Sept. 2, 2010), the Commission affirmed the Agency's dismissal of that complaint.
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