0120140010
08-05-2016
Jenna P.,1 Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Jenna P.,1
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120140010
Hearing No. 480-2012-00246X
Agency No. DON-11-63126-01357
DECISION
Complainant timely filed an appeal from the Agency's final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C.
� 621 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission VACATES the Agency's final order.
ISSUES PRESENTED
The issues presented are: (1) whether the Equal Employment Opportunity Commission Administrative Judge (AJ) properly found that the Agency correctly dismissed a portion of Complainant's complaint for untimely EEO Counselor contact; (2) whether there are genuine issues of material fact that require a hearing before an AJ; and (3) whether the AJ's issuance of a decision without a hearing was correct in the absence of an analysis as to whether Complainant's linguistic characteristics materially interfered with her job performance.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a probationary Electronics Trainee under the Navy Career Intern Program (NCIP), as a participant in the Engineering and Scientific Development Program (ESDP) at the Agency's Naval Air Warfare Center, Weapons Division, in Point Mugu, California. ROI, at 35. Upon beginning her probationary employment, Complainant was assigned to work with her Tour 1 team from April 1 through June 18, 2010. During this time period, Complainant worked under her Team Lead for Tour 1 (TL1). Id. at 40-41. According to Complainant, when she first started working, TL1 purposefully did not give her any assignments. However, according to TL1, the work assignment delay resulted from confusion about whether Complainant had her required security clearance. Id. at 353-54. TL1 averred that after he became aware that Complainant had received an interim security clearance, he immediately fully tasked her with classified work. Id.
After completing her Tour 1, Complainant was subsequently assigned to her Tour 2 team from June 21 through September 30, 2010. Id. at 41. Therein, Complainant was assigned to work under the Team Lead for Tour 2 (TL2) (Vietnamese, male). TL2 communicated with Complainant in Vietnamese due to her apparent trouble with speaking English. Id. Complainant was rated as unsatisfactory for her work on Tour 2. Id.
As a trainee, after the initial Tours 1 and 2, Complainant was responsible for contacting supervisors and team leaders to arrange the possibility of working on a Tour 3 team, as an aspect of the ESDP was to develop the participants' networking skills. Id. The Supervisory Program Manager stated that from September 2010 through January of 2011, he contacted other Agency organizations, and gave Complainant a list of supervisors and team leaders who could assist her in obtaining a Tour 3 team. Id. at 380. Nevertheless, according to management, Complainant was not offered any additional rotational assignments and/or a permanent work assignment due to her low performance rating and poor communication and interpersonal skills. Id. at 223.
The Requirements Engineer, however, testified that Complainant was having trouble finding a third tour team because of her difficulty speaking English. Id. at 418-19. Therefore, according to the Requirements Engineer, he approached the project manager of an F-18 aircraft project and asked if Complainant could do her Tour 3 on the F-18 project under his (the Requirements Engineer's) supervision. Id. The F-18 project manager reportedly agreed. Id. However, the Requirements Engineer averred that management said that Complainant could not work on the F-18 aircraft project. Id. The Requirements Engineer stated that management later telephoned him and said that it was not his responsibility to find a third tour for Complainant, and that she was not in the approved project plan. Id. Meanwhile, Complainant was assigned to the "Decoy" project for another possible Tour 3 assignment, but a week later management removed her from the project, citing budgetary reasons. Id. at 24. As a result, Complainant was never permanently assigned to a Tour 3 team.
In January 2011, Complainant received her National Security Personnel System (NSPS) Performance Appraisal, signed by the Supervisory Physicist who served as her first-level supervisor. Id. at 84-90. Therein, Complainant was rated poorly for three separate objectives. Complainant received separate ratings of 2 out of 5 for objectives 1 and 3, and a rating of 3 out of 5 for objective 2. Id. The ratings Complainant received from the Supervisory Physicist were based on separate e-mails he received from TL1 and TL2 on November 7 and 9, 2010. Id. at 302.
On February 16, 2011, Complainant was issued a memorandum of Notice of Termination. Id. at 222-24. Therein, the Agency stated that Complainant had not performed at a level sufficient to warrant her conversion to a career-conditional appointment. Id. The Notice of Termination specified that Complainant's work required multiple revisions and took longer to complete in comparison to other engineers. Id. The Notice of Termination also cited to Complainant's inability to effectively communicate with her team members as the reason for her termination. In addressing Complainant's communications issues, the Notice of Termination specified:
[Complainant's] lack of communication skills also contributed to [Complainant's] lack of development as a team player. [Complainant] could not communicate to other teammates and customers effectively. . . .[Complainant's] documentation was written with improper sentence structure, poor grammar, and with limited vocabulary. [Complainant] required instructions to be repeated to [her] several times before [she] would understand what the requirements were. On some occasions, team members wrote part of the documentation for [Complainant] to save time rather than keep repeating instructions. It is expected that ESDP participants on rotational assignments will not only perform well but also show . . . communications skills that would enable [Complainant] to be a productive and effective employee.
Id. at 223.
The Notice of Termination noted that NCIP trainees are expected to complete a minimum of three rotational tours during their first year, but Complainant was unable to obtain a third tour. Id. In so noting, the Agency wrote that Complainant's "lack of interpersonal skills have resulted in [her] not being offered any additional rotational assignments and/or a permanent work assignment." Id. As a result, Complainant was terminated from employment with the Agency effective February 17, 2011.
The Requirements Engineer testified in his affidavit that Complainant's communications issues related to her difficulty understanding English. The Requirements Engineer specifically averred:
I did observe that [Complainant] had difficulty understanding people who spoke to her very fast, and she herself was slow in forming sentences. From this difficulty with verbal English, people got the false impression that she was stupid or "slow". . . . I explained to a [coworker] that [Complainant] was not stupid (she had a bachelor's degree and master's degree in electric engineering), but that [Complainant] just had difficulty with her verbal English skills. [Complainant] did write English very well, and she fully comprehended emails sent to her in English.
Id. at 419.
The Requirements Engineer also stated that he heard rumors that Complainant's performance may have actually been satisfactory and that he had observed "a tremendous amount of anti-Vietnamese discrimination" within the Agency. Id. The Requirements Engineer testified:
Unconfirmed rumors are that TL2 rated [Complainant's] performance as satisfactory until he was confronted by an unknown high-level manager, and later TL2 changed [Complainant's] assessment to unsatisfactory. I heard this rumor after [Complainant] was dismissed from the government. . . . There is still a lot of anti-Vietnamese discrimination here at Point Mugu regardless of mandatory EEO training.
Id.
An Electrical Engineer similarly observed that Complainant's difficulties related to her trouble with the English language, noting, "It was hard to know if she understood instructions that were given to her because she had difficulty conveying her thoughts or concerns back." Id. at 414.
On February 9, 2011, Complainant contacted an EEO Counselor and filed an EEO complaint on June 1, 2011, alleging that the Agency discriminated against her on the bases of race (Asian), sex (female), national origin (Vietnam), age (57), and reprisal for prior protected EEO activity2 when:
1. She started work on March 1, 2010, but did not have a supervisor or work to do until a month later, and when she asked why she did not have a supervisor the Office Manager told her, "Because you're old enough to supervise yourself."
2. On April 12, 2010, she worked in the lab for the first time during her first tour, but an employee kicked her out of the lab;
3. From April 22, 2010, to May 06, 2010, an employee verbally abused and harassed her many times.
4. From April 2010 to May 06, 2010, a second employee kicked her out of the lab many times when she was working.
5. On May 11, 2010, TL1 assigned her to write the APR 39 and ALR 67 Test Procedure, which was impossible to finish without help because her part of this task was based on her first task and the time provided was insufficient (7 days out of 30 days).
6. From May 21, 2010 to September 30, 2010, TL2 never gave her an assignment.
7. On September 22, 2010, TL2 denied extending her in his group after she found an error on the master document.
8. Between July 2010 and September 2010, she created an Excel table during her second tour, but TL2 never mentioned it on her performance appraisal;
9. TL2 did not respond to her message of January 3, 2011, which requested that he provide her the feedback given to the Supervisory Physicist regarding her second tour performance.
10. On January 10, 2011, she received an official performance rating of 2 out of 5 from her supervisor, the Supervisory Physicist, for both her first and second tours.
11. From September 30, 2010, through January 2011 she was repeatedly denied the opportunity for a third tour.
12. Between December 3, 2010, and December 9, 2010, she found an error in the SSEWP website construction, but she was not allowed to present her finding to her group;
13. On February 7, 2011, she was terminated from her position as an Electronics Engineer, YD-0855-01.
On June 30, 2011, the Agency issued a letter of Partial Acceptance/Dismissal of Complainant's complaint. Therein, the Agency accepted claims 9, 10, 11, and 13 for investigation, but dismissed claims 1-8, and 12 for untimely EEO Counselor contact pursuant to 29 C.F.R.
� 1614.107(a)(2).
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's January 14, and May 22, 2013, motions for a decision without a hearing. The AJ issued a decision without a hearing on July 31, 2013, in the Agency's favor. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
In finding no discrimination, the AJ noted that Complainant exhibited performance deficiencies from the outset. The AJ found that Complainant received unsuccessful ratings of 2 out of a possible 5, based upon evaluations that were documented and corroborated. The AJ found that, unlike successful trainees, Complainant required daily feedback, additional instruction, and excessive hands-on help. The AJ further noted that Complainant was incapable of communicating her technical needs and failed to comprehend certain technical information. In finding that Complainant exhibited performance-related issues, the AJ noted that Complainant did not conduct original research as required, used "cut and paste" writing methods, and employed poor grammar and sentence structure. The AJ additionally noted that Complainant failed certain tasks even though TL2 spoke with her in the Vietnamese language. The AJ further noted that Complainant's performance problems impeded her efforts in finding a third tour. In so finding, the AJ observed that, while Complainant had been offered a third tour by the Requirements Engineer, it was not funded and he did not have the authority to make the offer. The AJ also noted that Complainant continually made errors, and instructions had to be repeated to her several times even when they were in her native Vietnamese language.
The AJ further found that the Agency properly dismissed claims 1-8, and 12 for untimely EEO Counselor contact in its June 30, 2011, letter of Partial Acceptance/Dismissal. The AJ found that these claims were discrete adverse actions, and that Complainant did not contact an EEO Counselor within the 45-day time limit. The AJ found that Complainant's claim of a hostile work environment could not be established because none of the background allegations occurred within the 45-day period. The AJ found that none of the timely matters at issue were part of "one unlawful employment practice." The AJ noted that, even if timely, the dismissed claims were not severe and/or pervasive enough to establish a hostile work environment.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the AJ erred in granting a decision without a hearing in favor of the Agency. In opposition to the appeal, the Agency asserts that the AJ properly granted a decision without a hearing in its favor because there are no genuine issues of material fact in dispute and the record has been adequately developed.
STANDARD OF REVIEW
In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, � VI.B. (Aug. 5, 2015) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis -- including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at 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"). We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record.
ANALYSIS AND FINDINGS
AJ's finding that the Agency properly dismissed claims 1-8, and 12
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Supreme Court has held that a complaint alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. See National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002). The Court further held, however, that "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Id. The Court defined such "discrete discriminatory acts" to include acts such as termination, failure to promote, denial of transfer, or refusal to hire, acts that constitute separate actionable unlawful employment practices. Id. Finally, the Court held that such untimely discrete acts may be used as background evidence in support of a timely claim. Id.
Here, we find the AJ erred in finding that the dismissed claims 1-8, and 12 were discrete acts, which were not a part of the same purported unlawful employment practice with respect to the timely raised claims of 9, 10, 11, and 13. We find, rather, that the dismissed claims constitute non-discrete acts that are clearly linked to claims 9, 10, 11, and 13, which were raised within the limitation period. Specially, claims 1-8 and 12 all occurred within the same facility, involved the same employees/supervisors, and occurred within the same relevant time period as the timely raised claims. We find that the dismissed claims were clearly related to Complainant's low performance ratings and termination, and therefore involved the same alleged unlawful employment practice. Therefore, the dismissal of these claims was not appropriate.
AJ's issuance of a Decision without a Hearing
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. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [p]arty opposing summary judgment has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
The courts have been clear that summary judgment is not to be used as a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768 (1st Cir. 1975). The Commission has noted that when a party submits an affidavit and credibility is at issue, "there is a need for strident cross-examination and summary judgment on such evidence is improper." Pedersen v. Dep't of Justice, EEOC Request No. 05940339 (Feb. 24, 1995). "Truncation of this process, while material facts are still in dispute and the credibility of witnesses is still ripe for challenge, improperly deprives Complainant of a full and fair investigation of her claims." Bang v. U.S. Postal Serv., EEOC Appeal No. 01961575 (Mar. 26, 1998). See also Peavley v. U.S. Postal Serv., EEOC Request No. 05950628 (Oct. 31, 1996); Chronister v. U.S. Postal Serv., EEOC Request No. 05940578 (Apr. 25, 1995).
Here, after a review of the record, we find the AJ erred in his analysis of the instant case, which only concentrated on whether Complainant had established evidence of pretext or a hostile work environment. We specifically find that the AJ failed to conduct the appropriate linguistic analysis as the Commission has expressly described in Daly v. U.S. Postal Serv., EEOC Appeal No. 01933547 (Sept. 14, 1995); Avila v. Dep't of the Navy, EEOC Appeal No. 01996939 (Sept. 26, 2002); and Tungjunyatham v. Dep't of Agriculture, EEOC Appeal No. 01A55397 (June 29, 2006).
We note that, under Commission guidelines, national-origin discrimination includes the denial of an equal employment opportunity "because an individual has the physical, cultural or linguistic characteristics of a national origin group." 29 C.F.R. � 1606.1. Although "[e]mployers sometimes have legitimate business reasons for basing employment decisions on linguistic characteristics . . . linguistic characteristics are closely associated with national origin. Therefore, employers should ensure that the business reason for reliance on a linguistic characteristic justifies any burdens placed on individuals because of their national origin." EEOC Compliance Manual Section 13, "National Origin Discrimination," EEOC Notice 915.003 � 13-V (Dec. 2, 2002). "Generally, a fluency requirement is permissible only if required for the effective performance of the position for which it is imposed." Id., at � 13-V.B.1. A "lack of proficiency in English may interfere with job performance in some circumstances but not in others," and an "employer should not require a greater degree of fluency than is necessary for the relevant position." Id.
Courts and the Commission have held that an adverse employment decision may be predicated upon an employee's linguistic characteristics only when it interferes materially with job performance. See Avila, EEOC Appeal No. 01996939 (citations omitted). Under Title VII, an employee's linguistic characteristics that do not interfere with an employee's ability to perform the duties of the job is not a legitimate justification for an adverse employment action. Denying employment opportunities, or otherwise implementing adverse employment actions, as a result of an employee's linguistic characteristics which cause communication difficulties may be a "cover" for unlawful discrimination, and will accordingly, be subjected to close scrutiny in a national origin discrimination case. See Tong v. Dep't of Defense, EEOC Appeal No. 0120053163 (June 27, 2007) (citing Daly, EEOC Appeal No. 01933547 (citations omitted)).
In determining whether an accent or other linguistic characteristic "materially interferes" with job performance, the Commission utilizes a three-part inquiry which includes: (1) the level and type of communication demands in the job; (2) whether the employee's speech was fairly evaluated as to its intelligibility, focusing on indicators of potential bias on the part of the deciding official and a neutral assessment of the employee's speech intelligibility given a non-prejudiced listener; and (3) the level, if any, to which the employee's speech intelligibility would present difficulties in the job at issue, according substantial weight to the future, and how reasonable individuals in the workplace could make provisions for any difficulties understanding the employee. See Daly, EEOC Appeal No. 01933547.
In the instant case, there is no dispute that Complainant, a native Vietnamese speaker, had some issues speaking and comprehending the English language. TL2, a native Vietnamese speaker as well, spoke to Complainant in Vietnamese, and various employees witnessed Complainant's difficulty with English. We find that whether Complainant's trouble with English materially interfered with her job performance is an issue that must be developed at a hearing. We note that the Agency cites to Complainant's lack of communication skills throughout its Notice of Termination. It is clear from the Notice of Termination and the record that the Agency's reasons for Complainant's termination were related to her reported difficulties communicating through English.
We find that there is a genuine issue of material fact in dispute as to whether Complainant's difficulties communicating through English materially interfered with her job performance, or were instead a cover for unlawful discrimination. In so finding, we note that the Requirements Engineer expressed his belief that Complainant could write and fully comprehend e-mails sent to her in English. Id. at 419. The Requirements Engineer further reportedly heard rumors that TL2 had actually rated Complainant's performance as satisfactory, but was instructed to lower it to unsatisfactory. Id. We note that another Electronics Engineer who worked with Complainant specifically averred:
[Complainant] was competent in her abilities, learning how to operate and program the simulation program during her brief tour. She was very eager to learn and perform any tasks assigned. She went out of her way to request tasking.
Id. at 424.
The Electronics Engineer further averred that "it is entirely possible" that TL2 treated Complainant differently from other employees. Id.
We find that that the affidavits of this Electronics Engineer and the Requirements Engineer raise doubts as to the credibility of the evidence provided by the Agency to support Complainant's unacceptable ratings for Tour 1 and 2 and subsequent termination. Moreover, the Agency, in Complainant's Notice of Termination, references Complainant's inability to find a third tour as a reason for her termination. Notwithstanding, the record reflects that Complainant did in fact find employees willing to provide her with a Tour 3 on at least two occasions. However, on both occasions, management canceled Complainant's Tour 3 assignments for alleged budgetary reasons and other various unsubstantiated reasons. Id. at 24-25.
In sum, the Commission determines that there are significant unresolved issues surrounding the above referenced matters. In light of the genuine issues of material fact in dispute, the issuance of a decision without a hearing should not have been granted. See Tungjunyatham, EEOC Appeal No. 01A55397 (hearing necessary for an analysis of whether complainant was able to communicate in English satisfactorily to perform essential functions of her job, and/or whether her accent would "materially interfere" with her job performance). Therefore, we find that judgment as a matter of law was not appropriate here.
CONCLUSION
Accordingly, we VACATE the Agency's final order and REMAND this matter to the Agency for further processing in accordance with the ORDER below.
ORDER
The Agency shall submit to the Hearings Unit of the EEOC San Francisco District Office a request for a hearing, within 15 calendar days of the date this decision becomes final. The Agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit within 15 calendar days of the date this decision becomes final. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall issue a decision on Complainant's claims in accordance with 29 C.F.R. � 1614.109 and the Agency shall issue a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. Filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
August 5, 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 AJ granted Complainant's request to add race, national origin, and age as bases in this matter.
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