0120132595
12-15-2015
Irwin R.,1 Complainant, v. Bill Johnson, President and Chief Executive Officer, Tennessee Valley Authority, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Irwin R.,1
Complainant,
v.
Bill Johnson,
President and Chief Executive Officer,
Tennessee Valley Authority,
Agency.
Appeal No. 0120132595
Agency Nos. TVA-2012-046; TVA-2012-056
DECISION
Complainant filed an appeal from the Agency's June 3, 2013 final decision concerning his equal employment opportunity (EEO) complaints alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to his complaints, Complainant worked as a Supervisor, Security Control Center, Policy and Oversight Security Division, at an Agency facility in Chattanooga, Tennessee. His first-line supervisor was the Security Operations Manager ("S1") (age 47) and his second-line was the Vice President of Security and Emergency Management ("S2") (age 51).
Complaint # 1: TVA No. 2012-046
On May 30, 2012, Complainant initially contacted an EEO counselor. On July 8, 2012, Complainant filed the first of two complaints. In Agency TVA No. 2012-046 (complaint #1), he alleged that the Agency discriminated against him on the bases of age (age 40) and reprisal for filing a workers' compensation claim, when the Agency did not select him for any of the eight positions for which he applied. Specifically, he alleged that:
1. on April 12, 2012, Complainant learned that he was not selected for a Program Manager position, advertised under Vacancy Announcement No. 30819;
2. on April 12, 2012, Complainant learned that he was not selected for an Inspector position under Vacancy Announcement No. 30817;
3. on May 4, 2012, Complainant learned that he was not selected for a Program manager position, in Knoxville, Tennessee, under Vacancy Announcement No. 30904;
4. on May 4, 2012, Complainant was not selected for a Compliance and Policies Specialist position under Vacancy Announcement No. 30901;
5. on May 4, 2012, Complainant was not selected for an Access Control Systems Specialist position under Vacancy Announcement No. 30902;
6. on May 4, 2012, Complainant learned that he was not selected for a Monitoring and Notification Center Supervisor position under Vacancy Announcement No. 30899;
7. on May 4, 2012, Complainant learned that he was not selected for an Incident Coordinator and Support Specialist position under Vacancy Announcement No. 30906; and
8. on May 4, 2012, Complainant learned that he was not selected for an Emergency Management Specialist position under Vacancy Announcement No. 30903.
On July 20, 2012, the Agency sent Complainant notice that it was accepting seven of the eight non-selection claims for investigation and further processing. The Agency dismissed claim 4 with regard to VPA Announcement No. 30901 for failure to state a claim. The Agency stated VPA No. 30901 was posted, "but ultimately cancelled due to budgetary reasons and was not filled." The Agency reasoned that Complainant "had not alleged that the VPA No. 30901 was canceled because of a discriminatory reason" and was not aggrieved. It also dismissed the allegation that he was subjected to reprisal (for filing of a workers' compensation claim) for failure to state a claim.
On July 25, 2012, Complainant requested to add the basis of disability to his complaint concerning the non-selections. Complainant also requested that an additional claim be added to his complaint alleging discrimination on the bases of age and disability when his employment was terminated effective July 10, 2012, due to a Reduction-in-Force (RIF). By letter dated July 31, 2014, the Agency accepted the amendment to add disability discrimination as a basis for the non-selection claims. However, the Agency declined to amend the complaint to add the claim concerning the RIF, reasoning it was not like or related to the non-selection claims. The Agency directed Complainant to seek EEO counseling on this claim in order to file a new complaint.
Complaint #2: TVA-2012-056
On August 21, 2012, Complainant initiated contact with an EEO Counselor regarding the aforementioned RIF claim. On September 18, 2012, Complainant filed a formal EEO complaint alleging he was discriminated against on the bases of age, disability and reprisal (for complaint #1) when he was terminated from employment via a RIF, effective July 10, 2012. The Agency accepted this complaint, and on September 26, 2012, notified Complainant that his two complaints would be consolidated for investigation and further processing.
Factual Background
The pertinent record developed during the investigation shows that Complainant has been an employee of the Agency since October 3, 1994, and a federal employee since October 1990.
On March 29, 2012, Complainant incurred on-the-job injury while he was on-duty and traveling in a TVA owned vehicle. The vehicle that Complainant was driving was struck from behind. Complainant suffered a severe injury to the vertebrae in his neck and was taken to the hospital. The driver of the other vehicle was cited by local law enforcement. Complainant's condition required surgery.
On March 30, 2012, Complainant filed for workers' compensation, including Continuation of Pay (COP). He claim was approved and he was placed on "non-work pay status" (COP) from March 30, 2012 to May 9, 2012. Management was aware of Complainant's accident, injury and workers' compensation claim.
Prior to Complainant's accident, around December 2011 - January 2012, management engaged in plans for a reorganization effort that would eliminate certain functions and positions. This decision was announced at a variety of meetings in February 2012. Complainant worked as a supervisor of the Police Security Control Center in Chattanooga and was informed that the all employees, including himself, in the Control Center were being eliminated and were to be subject to a RIF. The record also indicates that Complainant's counterpart supervisor of the Control Center in Knoxville, as well as his staff, was also being eliminated through the RIF.
The record shows that, on March 21, 2012, before the accident, S1 informed Complainant "about the upcoming reorganization of the TVA Police" and told Complainant that his current position was being eliminated. His supervisor asked Complainant to let him know what other position he was interested in. S1 gave Complainant assurances, but no guarantee, that he would have a position after the reorganization. The supervisor confirmed the conversation, but stated that he did not guarantee Complainant a position.
On May 10, 2012, Complainant was issued a RIF notice with an effective termination date of July 10, 2012. The record shows that the supervisor of the Control Center in Knoxville (age 45) was also issued a RIF notice. However, the Knoxville comparator was not ultimately terminated because he was selected for another position, while Complainant was not.
Complainant claims that his employment should not have been terminated for two reasons. First, he asserts that his position was not actually eliminated during the reorganization, but rather the job title was changed. Second, he asserts that he was qualified for all the positions listed in Complaint #1 for which he applied between March and April 2012, but he was not selected because management did not want him because of his disability. Complainant alleges that his position was the only one that was "eliminated" under the pretext of a RIF.
As noted, in March and April 2012, in anticipation of the RIF, Complainant applied for eight positions, but he was not selected for any of them. Complainant contends that he was "blacklisted" from being selected for any of the vacant positions because he is older than most of the workforce that was retained in the organization, as well as the knowledge of his medical restrictions due to the accident. He asserts that S2 influenced members of the interview panels to manipulate the scoring to give him a lower score than other applicants. He also contends he was disadvantaged during the interview process because he was out on medical leave due to his disability and had telephone rather than face-to-face interviews like the other candidates and was "in pain and heavily medicated on prescription narcotics."
1) VPA No. 30819 - Program Manager
On March 25, 2012, before his accident, Complainant applied for this Program Manager position, under Vacancy Announcement 30819. As an initial step in the selection process, management performed a record (paper) review. The records review criteria included education, leadership/ supervisory experience and knowledge of TVA security practices / project management and problem solving skills.
Nineteen candidates were selected for interviews, including Complainant. Complainant was interviewed by phone on April 5, 2012, after his accident. Complainant's score ranked him third of the 19 interviewed. However, he was not selected. The Agency selected a younger individual (no known disability, no prior EEO activity), who scored higher than Complainant. The interviewers stated that the selectee did better than Complainant during the interview. The position was filled on April 9, 2012.
2) VPA No. 30817 - Inspector, Organization: TVA Police and Physical Security
On March 15, 2012, Complainant applied for the Inspector position under VPA No. 30817. Complainant had the highest score (400) after the initial record review of the 45 candidates, Twenty-two candidates were selected to be interviewed, including Complainant. Seven Inspector positions were filled on April 23, 2012.
Complainant was interviewed, on April 5, 2012, by telephone by three management officials. Other candidates were interviewed in person. Complainant's interview score was 242. The Agency decided to give 40% weight to the records review and 60% for the interview. Complainant's overall score was 3052, but he was not among those selected. Complainant's overall score ranked him 8th among those candidates interviewed. All the selectees had overall scores higher than Complainant, with five of the seven selected receiving a higher interview score than Complainant. Some of the selectees were older than Complainant and some were younger. None were noted as having any disability or prior EEO activity.
3) VPA No. 30904 - Program Manager
On April 11, 2012, Complainant applied for the position of Program Manager, Crisis Management. Complainant was not offered an interview.
A record review, conducted by S2, determined who was offered an interviewed. S2 acknowledged that he performed his own record review and went outside of the applications to do this with regard to Complainant.
S2 stated that management interviewed only the top five candidates, and Complainant was not among those candidates. S2 stated that Complainant did not have the "crisis and emergency management-type experience, which would have resulted in a rating of zero." He also recalled that Complainant had been suspended for "neglect of duty." ROI, Ex. 6, pp. 260-261. S2 stated that, at most, a candidate with past disciplinary action could receive only two points. S2 "recalled that Complainant had disciplinary action within the past five years." He also stated that he believed Complainant had been on a performance improvement plan (PIP). The record shows that Complainant successfully completed the PIP, and in his subsequent two years of performance evaluations was rated as successful.
On April 17, 2012, after management announced its selection, a Human Resources representative cancelled the selection because the vacancy announcement had been posted with an incorrect job description. So it was reposted. The position was initially offered to Selectee 1 (age 51, no known disability or prior EEO activity), but she did not accept, although she filled the position "temporarily for six months." After this, the Agency asserts the position remained opened.
4) VPA No. 30901 - Program Manager
The Agency dismissed the claim concerning this selection for failure to state a claim, saying Complainant was not aggrieved because no selection ever made. The record does not contain information regarding this application, other than Complainant's statement that the announcement was "closed and not filled."
5) VPA No. 30902 - Access Control Systems Specialist
This position was filled on April 25, 2012. The position description states that, "in a developmental capacity, this position develops and implements an enterprise level program for non nuclear access control systems for ensuring compliance, funding, proper counter-measure selection, gap analysis and implementation" The candidates were rated on three criteria: education, experience and certifications.
S1 was the hiring manager. He explained that "the experience would not be limited to TVA experience." He selected a person (age 29) younger than Complainant. Both Complainant and the selectee received approximately the same records review score, and both were interviewed.
Complainant and the selectee had different interviewers. Complainant was eliminated based on his interview, although the selecting official (S1) conceded that Complainant and the successful candidate "gave similar answers," but the selectee elaborated more. The other panel members agreed that Complainant's responses were "very brief."
6) VPA No. 30899 - Supervisor, Monitoring and Notification Center
Under the reorganization, this was a new position created that absorbed some of Complainant's former duties. The Agency changed the position description which changed some of the qualifications. Among other things, the number of persons to be supervised changed from seven to ten. S1 also stated that the "most glaring" difference between the two positions was that the position that Complainant held involved police communications, while the description for the new position did "not mention anything about police communications." ROI, Ex. 20, p. 4612.
The rating criteria for VPA No. 30899 included three criteria: 1) education, 2) supervisory experience, and 3) work experience. Complainant's record review score was 400. The two successful younger candidates received lower record review scores (200 and 220). The position was filled on April 27, 2012. The two younger selectees (ages 32 and 31) scored higher than Complainant on the interview.
The record shows that Complainant was originally scheduled for his interview on April 18, 2012, but was unable to attend. S1 would not let Complainant drive for an in-person interview based on what he understood were Complainant's current work restrictions. After speaking with his supervisor, TVA management agreed to reschedule his interviews for the positions. As a result, the younger candidates were interviewed by a different panel than the one which interviewed Complainant. Complainant was interviewed on or around April 20, 2012. He was issued a total interview score of 285. The two younger candidates were rated at 455 and 430. Complainant was rated fourth among those interviewed. The Agency relied on the interviewing panel's testimony that Complainant did not perform as well as the selectees during the interview.
7) VPA No. 30906 - Incident Coordinator and Support Specialist
The selecting official for this position was the Acting Manager of Crisis and Emergency Management ("S5") (age 56, no disability). He denied knowledge of Complainant's age or disability.
The position description described the duties as "provid[ing] technical expertise and management in emergency incident coordination and support, emergency preparedness program procedures, program reviews in accordance with regulations and program requirements." For this vacancy, management chose to apply five criteria. Two of the five specific criteria were "experience with WEBEOC/MIR3 systems" (which is a system used to notify individuals during emergencies) and "specified emergency management experience."
S5 says Complainant met the minimum qualifications, but was not chosen to be interviewed. Management set a cut-off score of 240 for interviews. Officials testified that those above 240 were interviewed. The selectee, who was younger than Complainant with no known disability, was rated at 240. Complainant was scored at 160.
8) VPA No. 30903 - Specialist Emergency Management, Chattanooga, Tennessee
S5 also selected the applicants to be interviewed for this position. This time, S5 did not find Complainant qualified. S5 explained that, because Complainant did not have any emergency management experience, Complainant received a rating of zero for the first criterion and a zero for the fifth criterion, "specific emergency management systems experience." The selectee (age 23) was ranked second among the candidates. The 23-year-old selectee was deemed the best candidate.
The Agency Decision
Following the investigation, Complainant was provided the opportunity to request a hearing before an EEOC Administrative Judge, but did not do so. Therefore, the Agency issued its final decision based on the evidence gathered during the investigation. The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The Agency acknowledged that Complainant was a member of a protected class by virtue of his age, was subjected to an adverse employment action when he was not selected for multiple positions and his employment was terminated by a RIF. The Agency also conceded that many of the selectees were younger than Complainant. Therefore, "regarding those positions, Complainant has established a prima facie case of age discrimination." The Agency found, however, that Complainant had not established his age claims with regard to VPA Nos. 30817 and 30904/30940 because the record reveals that some individuals within Complainant's protected class were selected.
Next, the Agency found "[r]egarding Complainant's RIF, the record reveals that employees within Complainant's protected class, i.e. employees over the age of 40 were terminated by RIF. Therefore, Complainant has not established that he was treated differently than similarly situated individuals, and he has not established a prima facie case of age discrimination regarding his termination by RIF. The Agency found that "Complainant has not established that he was treated differently than similarly situated individuals" with regard to his termination by RIF because employees over the age of 40 were "similarly situated".
With regard to the disability claim, the Agency acknowledged that Complainant's supervisor was aware that Complainant had been injured in an accident and had signed workers' compensation documents that described Complainant's injuries. The Agency stated "the record does not clearly reflect the requisite facts to make a determination as to whether Complainant's displacement of cervical intervertebral disc rendered him disabled under the Rehabilitation Act." However, for purposes of analysis, the Agency assumed that Complainant has established a prima facie case of disability discrimination.2
The Agency found that it had "adequately met its burden of articulating a legitimate, non-discrimination reason for its actions." With regard to "Complainant's RIF" the Agency found that Complainant's job function was consolidated with two other groups and his former position was eliminated. The Agency found that there is no evidence that Complainant's age, disability or EEO participation were factors in management's decisions.
With regard to the reprisal claim, the Agency decision acknowledged that S2 "had input into the decision regarding how the former TVA Police and Physical Security organization would be changed to the new Security and Emergency Management organization which resulted in Complainant's termination by RIF. However, the Agency found that Complainant first EEO activity (May 30, 2012 counseling contact) occurred after it issued the RIF notice on May 10, 2012.
With regard to the non-selections, the Agency assumed that Complainant established a prima facie case of reprisal. The Agency then found that it articulated a legitimate reason because "management maintains that Complainant was not selected because "more qualified and competent candidates were selected." The Agency stated that Complainant was not interviewed or selected because he lacked the experience required for the position and scored lower than the selected candidates.
In conclusion, the Agency determined that the evidence failed to establish that Complainant was discriminated against or unlawfully retaliated against as alleged.
The instant appeal from Complainant followed. On appeal, Complainant argues that the Agency misconstrued his reprisal claim. He states that he "did not indicate in [his] complaint that [he] was not selected for a position or subjected to a RIF based on a reprisal. The reprisal, in fact, occurred (as indicated in my complaint) when at least two members of the TVA staff contacted directly (in violation of TVA Standard Operating Procedures) the U.S. Department of Labor and attempted to interfere with [his] Workers Compensation benefits. This occurred only 2 days AFTER [he] filed an Equal Employment Opportunity complaint."
Complainant also contends that S2 "influenced members of the interview panels to manipulate the scoring" to Complainant's detriment. He also asserts that he was not provided the same opportunity to interview in person, and that management individually targeted him for the RIF.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (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").
Reprisal Claims
Generally, a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000). In this case, Complainant believed that he engaged in a protected activity when he asked the Agency to allow him to travel for the job interview on April 5, 2012, and when, on March 30, 2012, he filed for workers' compensation. He initiated EEO counseling on that same date and formally he filed his EEO complaint on July 8, 2012.
We do not consider the April 5 incident, or Complainant filing for workers' compensation to be a protected EEO activity. As noted above, on appeal Complainant has made it clear that he was not alleging unlawful reprisal with regard to either the RIF or the non-selections. Even if he had raised such a claim we find Complainant did not engage in protected EEO activity until May 30, 2012, at the earliest. With regard to the RIF, the record is clear that the RIF was announced months before and Complainant received his RIF notice 20 days before his first EEO activity. He also did not establish his claim of reprisal with regard to the non-selections, as the selections of other candidates occurred before his initial EEO Counselor contact.
Accordingly, we affirm the Agency's determination that Complainant has not established his reprisal claims.
Age and/or Disability Claims
The prima facie inquiry may be dispensed with in this case with regard to Complainant's claims of disparate treatment with regard to both the RIF and the non-selections on the bases of his age and/or disability3 because the responsible Agency officials have articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). The Agency asserted that Complainant was not selected for each of the positions because a "more qualified and competent candidate was selected." For three of the identified positions, Complainant was not interviewed because the score assigned to him was lower than the scores the Agency issued to the younger comparators with no known disabilities.
To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
Complainant has failed to meet his burden of proving that the proffered reasons offered by management were pretext designed to mask the true discriminatory motivations. Complainant has not shown that the alleged disparities in qualifications between himself and the selectees were "of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the [selectees] over [him] for the job in question." Cooper v. Southern Co., 390 F.3d 695, 732 (11th Cir. 2004); see also, Ash v, Tyson Foods, Inc., 126 S. Ct. 1195, 1197-1198 (2006). As such, we find that Complainant failed to establish by a preponderance of the evidence that he was discriminated against as he alleged.
While he asserts that S2 "influenced members of the interview panels to manipulate the scoring" to Complainant's detriment, in his statement on appeal he concedes that this was only "hearsay," and the record contains no evidence of this claim. The record does show that S2 was involved directly in one of the selections (VPA No. 30904 - Program Manager). In this instance, S2 decided that Complainant did not qualify for an interview. S2, who was Complainant's second-level supervisor, used his personal knowledge of Complainant, in part, to disqualify him from the interview. He pointed to a prior disciplinary action and Complainant's placement on a performance improvement plan as part of the justification for his low rating. While Complainant argues that it was unfair to count these isolated blemishes on his otherwise eighteen-year career and honorable military service, he does not deny the veracity of S2's claims. The focus of the inquiry remains on the motivation of the S2 and the other officials, regardless of whether their business judgment was correct. See Glass v. United States Postal Service, EEOC Appeal No. 07A50068 (June 15, 2006). Without more, Complainant has not proven S2 was motivated by animus towards either his age or disability.
Complainant also argues that he was disadvantaged during the interview process for some of the selections because he was on extended medical leave due to his disability and had telephone, rather than in-person, interviews and was in severe pain and under the effects of prescription narcotics that made him "sluggish and unable [to] comprehend clearly." While we sympathize with Complainant's difficult circumstances during this period, we again do not find that these facts are sufficient to establish that the selections at issue were influenced by discriminatory animus towards Complainant's age or disability.
With regard to the RIF, we note that the Agency was planning a large scale reorganization that affected many employees months before Complainant's accident. Plans were underway to make changes that would impact Complainant's police position, consolidating its functions with two other groups. There was no guarantee that Complainant would have been retained after the reorganization, although management had indicated that efforts would be made to place him in another position. It is true that the comparator who occupied the same position as Complainant held, except in Knoxville, was selected for another position on May 7, 2012. Again however, without more, this is insufficient to prove, by a preponderance of the evidence that discrimination was a motivating factor in either the decision to RIF Complainant or the decision not to select him for one of the disputed positions.
CONCLUSION
Accordingly, for the reasons stated herein, we AFFIRM the Agency's final decision concluding Complainant failed to prove, by a preponderance of the evidence, that he was discriminated against on the basis of his age and/or disability.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 tends 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, 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 (S0610)
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. 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 (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
December 15, 2015
__________________
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 For purposes of our analysis, we will also assume that Complainant was a qualified individual with a disability.
3 This case arose after January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008 (ADAAA). Because this matter occurred in 2012, the Commission will use the analytical framework as it exists pursuant to the ADAAA. The Agency, in its FAD, assumed Complainant established a prima facie case of disability discrimination.
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