01966055
10-09-1998
Janice K. Abegglen, Appellant, v. Bill Richardson, Secretary, Department of Energy, Agency.
Janice K. Abegglen v. Department of Energy
01966055
October 9, 1998
Janice K. Abegglen, )
Appellant, )
)
v. ) Appeal No. 01966055
) Agency Nos. 95(128)BPA, 96(90)BPA
Bill Richardson, )
Secretary, )
Department of Energy, )
Agency. )
_______________________________________)
DECISION
INTRODUCTION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (EEOC) from the final agency decision concerning her equal
employment opportunity (EEO) complaints, which alleged discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. �2000e et seq., the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. �621 et seq., and the Rehabilitation Act of
1973, as amended, 29 U.S.C. �791 et seq. The appeal is accepted by the
Commission in accordance with the provisions of EEOC Order No. 960.001.
ISSUES PRESENTED
The issues presented are:
(1) whether appellant has established by a preponderance of the
evidence that the agency discriminated against her on the bases of
religion (Mormon), sex (female), age (42), and physical disability
(migraine headaches) when (a) her request for reasonable accommodation,
consisting of flexible work hours, was denied by her supervisor, and
(b) her supervisor failed to correct a hostile work environment where
inappropriate comments were made, on an ongoing basis, about appellant's
religious beliefs [Complaint No. 95(128)BPA]; and
(2) whether the agency properly dismissed for failure to state a claim
appellant's complaint alleging that the agency discriminated against her
on the bases of religion, sex, age, physical disability, and reprisal
(prior EEO activity) when (a) on October 13, 1995, the Manager, CES
Account Support, intimidated her by saying that she was unreliable and
not competent and that she would be removed from government service;
(b) on November 2, 1995, she received a memorandum informing her of a
forthcoming directed reassignment which was never effected; (c) when
her request for reasonable accommodation, consisting of flexible work
hours, was denied by her supervisor; and (d) when she was constructively
discharged by the agency [Complaint No. 96(90)BPA].
BACKGROUND
Complaint No. 95(128)BPA
In a complaint dated June 6, 1995, appellant, then a Secretary, GS-6,
with the agency's Bonneville Power Administration, alleged that the
agency discriminated against her as delineated in Issue 1 of the
above-entitled statement "Issues Presented." The agency conducted an
investigation, provided appellant with a copy of the investigative report,
and advised appellant of her right to request either a hearing before
an EEOC administrative judge (AJ) or an immediate final agency decision
(FAD). No reply was received. After the expiration of the regulatory
time period for response, on June 27, 1996, the agency issued FAD 1,
finding no discrimination.
Complaint No. 96(90)BPA
In a complaint dated March 18, 1996, appellant, now a former employee,
alleged that the agency discriminated against her as delineated in Issue
2 of the above-entitled statement "Issues Presented." On June 25, 1996,
the agency issued FAD 2, dismissing the complaint for failure to state
a claim. it is from these decisions that appellant now appeals.
ANALYSIS AND FINDINGS
As a preliminary matter, the Commission notes that appellant's
resignation from the agency has not rendered any of her allegations moot.
To determine whether the issues raised in a complaint are moot, it must
be ascertained (1) whether it can be said with assurance that there is
no reasonable expectation that the alleged violation will recur, and (2)
whether the interim relief or events have completely and irrevocably
eradicated the effects of the alleged violations. See County of Los
Angeles v. Davis, 440 U.S. 625 (1979). When such circumstances exist,
no relief is available and no need for a determination of the rights of
the parties is presented. Here, although there may be no likelihood
of recurrence of some actions because appellant is no longer in the
workplace, appellant has indicated that she has sustained injuries on
account of the discrimination which might entitle her to compensatory
damages. Accordingly, appellant's allegations are not moot, because her
entitlement to compensatory damages, if any, has yet to be determined.
See Pritt v. U.S. Postal Service, EEOC Request No. 05950792 (July 3,
1997).
Turning now to the substance of appellant's complaints, in any
proceeding, either administrative or judicial, involving an allegation of
discrimination, it is the burden of the complainant, appellant herein, to
initially establish that there is some substance to his or her allegation.
In order to accomplish this burden the complainant must establish a
prima facie case of discrimination. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973); see also Furnco Construction Corp. v. Waters,
438 U.S. 567, 576 (1978). This means that the complainant must present
a body of evidence such that, were it not rebutted, the trier of fact
could conclude that unlawful discrimination did occur. The burden then
shifts to the agency to articulate a legitimate, non-discriminatory
explanation for its action. Texas Dept. of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). In this regard, the agency need only produce
evidence sufficient "to allow the trier of fact rationally to conclude"
that the agency's action was not based on unlawful discrimination. Id. at
257. Once the agency has articulated such a reason, the question becomes
whether the proffered explanation was the true reason for the agency's
action, or merely a pretext for discrimination. St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 511 (1993). Although the burden of production,
in other words, "going forward," may shift, the burden of persuasion, by
a preponderance of the evidence, remains at all times on the complainant.
Burdine, 450 U.S. at 256. This analysis, developed in the context of
Title VII proceedings, also applies to cases arising under the ADEA.
Jackson v. Sears, Roebuck & Co., 648 F.2d 225 (5th Cir. 1981).
The elements of the prima facie case are determined by the individual
circumstances of each case and the bases of discrimination alleged; but
regardless of the specific action at issue, appellant may establish a
prima facie case by demonstrating that she is a member of a protected
group, that she is similarly situated to employees outside of her
protected group, and that she was treated differently than those
employees. Potter v. Goodwill Industries of Cleveland, Inc., 518 F.2d
864, 865 (6th Cir. 1975). In order for two or more employees to be
considered similarly situated for the purpose of creating an inference
of disparate treatment, appellant must show that all of the relevant
aspects of her employment situation are nearly identical to those of
the comparative employees whom he alleges were treated differently.
Smith v. Monsanto Chemical Co., 770 F.2d 719, 723 (8th Cir. 1985).
Courts have adopted and applied the Title VII burdens of proof, see supra,
to disability discrimination. See Norcross v. Sneed, 755 F.2d 113 (8th
Cir. 1985); Prewitt v. U.S. Postal Service, 662 F.2d 292 (5th Cir. 1981).
In order to establish a prima facie case of disability discrimination,
appellant must prove, by a preponderance of the evidence, that she was
treated differently than individuals not within her protected group,
or that the agency failed to make a needed reasonable accommodation,
resulting in adverse treatment of appellant. See Sisson v. Helms,
751 F.2d 991, 992-93 (9th Cir.), cert. denied, 474 U.S. 846 (1985).
As a threshold matter, appellant must establish that she is a "qualified
individual with disability" within the meaning of the Rehabilitation Act.
The Act's implementing regulation defines "individual with disability"
as a person who has, has a record of, or is regarded as having a physical
or mental impairment which substantially limits one or more of that
person's major life activities: self-care, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working.
29 C.F.R. ��1614.203(a)(1),(3). The regulation defines a "qualified
individual with disability" as a person "who, with or without reasonable
accommodation, can perform the essential functions of the position in
question without endangering the health and safety of the individual or
others ...." 29 C.F.R. �1614.203(a)(6).
Appellant submitted evidence showing that, for some years, she has
experienced debilitating migraine headaches which leave her partially or
wholly incapacitated for periods of time. The agency does not dispute
that, on account of this condition, appellant is an "individual with
disability" within the meaning of the Rehabilitation Act. The agency does
dispute whether appellant is a "qualified individual with disability"
given, as the agency expresses the matter, that appellant's absences
from the workplace preclude her from performing the essential functions
of her position. In light of evidence in the record that appellant
is capable of performing her essential functions when she is present
in the workplace, the Commission will consider below the agency's
position, which amounts to an argument that accommodating appellant's
disability would work an "undue hardship" on the agency's operations.
In that case, the agency may not be required to provide accommodation.
Hall v. U.S. Postal Service, 857 F.2d 1073, 1080 (6th Cir. 1988).
Complaint No. 95(128)BPA
Request for Flexible Work Schedule
(I) Disparate Treatment Discrimination
Appellant alleged that she was subjected to disparate treatment when
her request for a flexible work schedule was denied, and also that such
denial constituted a failure to accommodate her disability.<1> Regarding
the disparate treatment allegation, the Commission finds that appellant
has established a prima facie case of discrimination based on religion,
age, and disability, in that at least one coworker -- a non-Mormon,
non-disabled female under 40 years of age -- was afforded a flexible
work schedule at the time appellant's request was denied.
The agency, however, has met its burden to explain why the coworker's
request was granted, but appellant's was not. The agency explained
that, unlike appellant, the coworker's request for flexible scheduling
covered a definite period of time and, because the coworker's need
for leave was usually known in advance, arrangements could be made to
have another employee cover for her. Further, the coworker's duties
were such that her absence did not have a major impact on the rest of
the office staff. By contrast, appellant requested to be allowed a
flexible schedule indefinitely; her absences from the office frequently
were not known until the last minute, making it difficult to schedule
coverage for her; and when appellant was out of the office, many normal
office functions within her responsibilities, such as greeting visitors,
answering telephones, and signing for packages, simply did not get done.
In support of a finding that the agency's explanation was merely a pretext
for discrimination, appellant notes that her supervisor insisted that
she provide an advance schedule of expected absences and a prognosis.
This demand, however, is no different from the information demanded of
the coworker. Further, the record reflects that appellant was only
requested to provide this information to the extent it was possible
to do so. The Commission is not persuaded that the agency's denial of
appellant's request for a flexible work schedule more likely than not
was motivated by discriminatory animus.
(ii) Failure to Accommodate Disability
Appellant also alleged that the denial of her request for a flexible
work schedule constituted failure to accommodate her disability.
An agency must make reasonable accommodation for the known physical or
mental limitations of a qualified disabled employee, unless the agency
can demonstrate that accommodation would work an undue hardship on
its operations. 29 C.F.R. �1614.203(c); see McCullough v. U.S. Postal
Service, EEOC Request No. 05950539 (April 25, 1996). The Commission
notes in this regard that an agency is not required to provide a disabled
employee with every desired accommodation. Belser v. U.S. Postal Service,
EEOC Petition No. 03900064 (July 6, 1990). The employee must show a
nexus between the disabling condition and the requested accommodation.
See Wiggins v. U.S. Postal Service, EEOC Appeal No. 01953715 (April 22,
1997). An agency is not required to provide a requested accommodation
if it does not assist the disabled employee to perform the essential
functions of his or her position. Bullard v. U.S. Postal Service,
EEOC Appeal No. 01934156 (May 3, 1994) (citing Belser, EEOC Petition
No. 03900064).
As noted above, appellant essentially requested that she be allowed to
set her own work hours, arriving and departing outside of normal working
hours and accruing compensatory time, without prior permission on an
as-needed basis. The agency explained, however, that the purpose of
appellant's position was to provide clerical and administrative support
for the office staff. While some of her essential functions (typing,
for instance) could be performed after normal business hours or on the
weekends, others could not: greeting visitors, answering the telephones,
signing for packages, and responding to customer inquiries, as well as
tasks requiring interaction with other staff members. The agency noted
that appellant's absences frequently were not known in advance, making it
difficult or impossible to arrange for coverage. The agency further noted
that, although appellant's physician stated that appellant might need to
arrive late to work approximately 20 percent of the time on account of her
migraine condition, appellant in fact arrived to work late or was absent
much more often -- about 50 percent of the time, often not arriving
until the afternoon, if at all. The agency noted that the organization
in which appellant worked was small (2 secretaries serving 22 staff
members, with appellant principally responsible for 6 staff members),
and that it was difficult for the office to accomplish its work while
constantly shifting other employees around to cover appellant's absences.
The Commission finds that the accommodation sought by appellant in this
case -- to make up her own work schedule and accrue compensatory time,
without prior permission on an as-needed basis -- would work an undue
hardship on the agency's operations. The Commission further finds that
the accommodation requested by appellant would not have enabled her to
perform the essential functions of her position, many of which require
her presence in the office during normal working hours. Accordingly,
the agency did not discriminate against appellant based on her disability
by failing to provide the requested accommodation.
Hostile Work Environment
Appellant also alleged that the agency discriminated against her when
it failed to correct a hostile work environment. Appellant alleged
that coworkers made several inappropriate comments about her religion.
It is well-established that an employer who creates or tolerates a
work environment which is permeated with "discriminatory intimidation,
ridicule, and insult" that is "sufficiently severe or pervasive to alter
the conditions of the victim's employment" is in violation of Title VII.
Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) (citing Meritor
Savings Bank v. Vinson, 477 U.S. 57 (1986)). The conduct in question is
evaluated from the standpoint of a reasonable person, taking into account
the particular context in which it occurred. Highlander v. KFC Management
Co., 805 F.2d 644 (6th Cir. 1986). Unless the conduct is very severe,
a single incident or a group of isolated incidents will not be regarded
as discriminatory treatment. Walker v. Ford Motor Co., 684 F.2d 1355
(11th Cir. 1982).
The record reflects that appellant alleged several comments by different
coworkers over a lengthy period of time. For instance, on one occasion,
a coworker expressed surprise that a Mormon would attend a party where
alcohol would be served. On another occasion, a coworker referred to
"what we Christians believe," indicating that she did not know that
Mormons also were Christians. The Commission finds that the comments
complained of by appellant, being neither opprobrious nor frequent, do
not rise to the level of harassment. Further, the record reflects that
when appellant informed her supervisor, also Mormon, of the comments,
he counseled other managers and staff on the matter. Accordingly,
the Commission finds that appellant has not established her claim of
harassment.
Complaint No. 96(90)BPA
Request for Flexible Work Schedule
In this complaint, appellant again raised the issue discussed above
regarding a flexible work schedule. This was the same issue raised and
addressed by the agency in Complaint No. 95(128)BPA. The Commission's
regulations provide that the agency shall dismiss a complaint, or portion
therefore, that "states the same claim that is pending before or has
been decided by the agency or Commission...." 29 C.F.R �1614.107(a).
Accordingly, the Commission finds that the agency properly dismissed
this allegation.
Intimidation
Appellant alleged that she was discriminated against when, on October 13,
1995, her second-line supervisor intimidated her by stating to her that
she was unreliable and not competent, and would be removed from government
service. No action was taken against appellant in connection with this
remark. The Commission has held that a remark or comment, unaccompanied
by concrete action, is not a direct and personal deprivation sufficient
to render an individual aggrieved. Gens v. Department of Defense, EEOC
Request No. 05910837 (January 31, 1992); Fuller v. U.S. Postal Service,
EEOC Request No. 05910324 (May 2, 1991) (the mere verbal exchange between
an appellant and his supervisor, without some showing of injury in fact,
does not show that appellant is aggrieved); Simon v. U.S. Postal Service,
EEOC Request No. 05900866 (October 3, 1990) (citing McCann v. U.S. Postal
Service, EEOC Request No. 05880867 (January 27, 1989)). Accordingly, the
agency properly dismissed this allegation for failure to state a claim.
Directed Reassignment
Appellant was serving a one-year detail to the Conservation Program at
the Idaho Falls District Office. A condition of the detail had been that
at its expiration she would return to the Customer Service Office, also
in Idaho Falls. As the expiration of her detail approached, management
determined that the Customer Service Office did not have enough work
to occupy appellant, but that the Customer Service Office in Boise did.
The agency informed appellant that she would be reassigned to the Boise
facility at the expiration of her detail, effective March 16, 1996.
Appellant objected to this reassignment, and requested and received
several extensions of the deadline to decide whether to accept the
reassignment.<2> Prior to the latest deadline, however, appellant
resigned from the agency, effective January 16, 1996. It is noted that
appellant raised an allegation of constructive discharge in this regard,
which is discussed separately below.
The Commission's regulations provide that an agency shall dismiss a
complaint or portion thereof which "alleges that a proposal to take a
personnel action, or other preliminary step to taking a personnel action,
is discriminatory...." 29 C.F.R. �1614.107(e). The agency construed
the notice of directed reassignment as being a proposed action, which
never became effective because appellant resigned. However, a November
15, 1995, letter to appellant from the Southeast District Sales Manager
stated, "Because we do not have work available in Sales in the Idaho
Falls office, I cannot reconsider the directed reassignment." Further,
a December 12, 1995, letter to appellant from the Southeast District
Sales Manager stated that he was denying her request for advanced leave
"[b]ecause you have not yet decided whether you will continue your
employment with BPA by accepting the directed reassignment to Boise
...." Clearly, the decision to reassign appellant to the Boise office
had already been made. The Commission therefore finds that the directed
reassignment was a completed action, regardless of appellant's decision
to resign prior to the date on which she was to report for duty in Boise.
Accordingly, the agency's dismissal of this allegation was improper,
and is reversed.
Constructive Discharge
As a preliminary matter, the Commission notes that the agency erroneously
informed appellant that the dismissal of this issue could be appealed
only to the Merit Systems Protection Board (MSPB), not to the Commission.
Where the agency has accepted for processing a complaint pertaining to an
employment action appealable to the MSPB (a "mixed case" complaint), the
complainant may appeal the resulting FAD only to the MSPB. 29 C.F.R. �
1614.302(d)(1). However, where the agency has not accepted the complaint
for processing, i.e., has disposed of the complaint on procedural grounds,
the resulting FAD is appealable to the Commission. See id. Accordingly,
this issue is properly before the Commission on appeal.
The record reflects that appellant resigned effective January 16,
1996. On February 16, 1996, appellant spoke with an EEO Counselor and
indicated that she was considering filing an EEO complaint with regard
to her constructive discharge from the agency. On February 21, 1996,
appellant conveyed to the counselor that she intended to pursue her
various EEO matters, but was not feeling well and wanted to delay further
discussion until she was feeling better and could have her non-attorney
representative present. The counselor sent appellant various paperwork
to complete so that she (the counselor) could begin counseling on the
constructive discharge allegation. The record does not reflect whether
appellant was given a deadline to return the paperwork to the counselor.
The counselor stated in her report that as of May 10, 1996, she had
not received the requested paperwork from appellant, and had had no
oral or written communication from appellant since February 21, 1996.
Appellant, however, stated that she received the forms on March 15, 1996,
and returned them by regular mail on March 18, 1996. Appellant contacted
the counselor telephonically on May 2, 1996, and was informed that the
paperwork had not been received. In a May 6, 1996, follow-up letter,
appellant indicated her surprise that the paperwork had not been received,
and her dismay that no one had contacted her in the interim. The agency
posits that appellant had, in fact, received the paperwork on March 5,
1996, as evidenced by a return-receipt, and notes that appellant had
sent all previous EEO-related correspondence by certified mail. On May
20, 1996, the agency finally received the paperwork necessary to begin
counseling the constructive discharge allegation.
The Commission's regulations provide for dismissal of a complaint where
the complainant fails to respond within 15 days to the agency's request
to proceed with the complaint. 29 C.F.R. �1614.107(g). In this case,
however, there is no evidence in the record to show that appellant was
given a deadline by which to return the forms, or was apprised of the
consequences of her failure to do so in a timely fashion. Further,
the copy of the return-receipt card produced by the agency is annotated
that the document sent was "notices of right to file," not documents
to initiate counseling. Further, the fact that appellant previously
sent correspondence by certified mail is not dispositive of whether,
in fact, she sent the missing documents by regular mail. Given that
appellant timely apprised the EEO Counselor of her intention to raise an
allegation of constructive discharge, the Commission finds that a delay
of several weeks in filing the paperwork necessary to begin counseling,
under these uncertain circumstances, does not constitute grounds to
dismiss the allegation for failure to prosecute. Accordingly, the
agency's dismissal of this allegation is reversed.
CONCLUSION
Based upon a thorough review of the record, and for the foregoing reasons,
it is the decision of the Equal Employment Opportunity Commission to
AFFIRM the final agency decision in part and to REVERSE the final agency
decision in part, and to REMAND for further processing the allegations
pertaining to the directed reassignment and the constructive discharge.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
of the appropriate rights within one hundred fifty (150) calendar days
of the date this decision becomes final, unless the matter is otherwise
resolved prior to that time. If appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant and a copy
of the notice that transmits the investigative file and notice of rights
must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
appellant. If the agency does not comply with the Commission's order,
appellant may petition the Commission for enforcement of the order.
29 C.F.R. �1614.503 (a). Appellant 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. ��
1614.408, 1614.409, and 1614.503 (g). Alternatively, appellant 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. ��1614.408 and 1614.409. 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) (Supp. V 1993). If appellant files a civil
action, the administrative processing of the complaint, including any
petition for enforcement, will be terminated. See 29 C.F.R. �1614.410.
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark,
the request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
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 an action in an appropriate
United States District Court. It is the position of the Commission
that 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. You should be aware, however, that
courts in some jurisdictions have interpreted the Civil Rights Act of
1991 in a manner suggesting that a civil action must be filed WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision.
To ensure that your civil action is considered timely, you are advised to
file it WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive
this decision or to consult an attorney concerning the applicable time
period in the jurisdiction in which your action would be filed. In the
alternative, you may file a civil action AFTER ONE HUNDRED EIGHTY (180)
CALENDARS 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 (Z1092)
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 that the Court appoint
an attorney to represent you and that the Court 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 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:
Oct. 9, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1The record reflects that appellant requested that she be allowed,
inter alia, to work non-standard hours (for example, arriving at 11:00
a.m. and departing at 7:30 p.m.) and accrue compensatory time, without
prior permission on an as-needed basis.
2The extensions of time were granted after appellant submitted evidence
from her physician indicating that her mental state was then such that she
could not make a rational decision whether to accept the reassignment.