0120090002
08-24-2012
Katherine L. Fleming, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior (National Park Service), Agency.
Katherine L. Fleming,
Complainant,
v.
Ken L. Salazar,
Secretary,
Department of the Interior
(National Park Service),
Agency.
Appeal No. 0120090002
Hearing No. 510-2008-00022X
Agency No. NPS-06-0721
DECISION
Complainant timely filed an appeal from the Agency's August 27, 2008, 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 AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are: 1) whether the investigator properly declined to conduct investigative interviews with three witnesses; 2) whether the EEOC Administrative Judge (AJ) properly rejected Complainant's request to have two witnesses testify at the hearing; 3) whether the AJ abused his discretion when he imposed sanctions on Complainant for failing to obey his order compelling discovery; and 4) whether substantial evidence supports the AJ's finding that Complainant failed to prove that the Agency harassed or terminated her because of her age, sex, or previous EEO activity.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Museum Curator, GS-11, at the Agency's facility in Homestead, Florida. Museum Curators provide direction over extensive museum collections and carry out responsibilities in the four museum functions of collections, exhibits, research, and education. Complainant was hired by her supervisor (S1) on or about September 18, 2005. As a new employee, Complainant was subject to a one- year trial or probationary period. The other employees in Complainant's department, with the exception of S1, who was a GS-12, were either at the GS-7 or GS-5 levels.
On October 2005, the Agency assigned Complainant to work with S1, a Conservator, and a Museum Technician, on a project at the Dry Tortugas National Park (Dry Tortugas), where they attempted to preserve several cannon damaged by hurricanes. Complainant and her co-workers returned to Homestead by late October 2005.
In January 2006, S1 issued Complainant a proposed suspension for three days for misconduct and failure to follow instructions. Specifically, S1 proposed suspending Complainant because Complainant failed to contact and arrange the transportation of an official from the airport; Complainant signed off on a receipt for work performed by a contractor without the authority to do so; management had to have repeated discussions with Complainant about S1's expectations about how to process the EVER-717 collection; Complainant did not obey instructions to send her weekly reports to the Acting Branch Chief and to send a copy to S1; management had to give Complainant repeated instructions about providing an estimate of how much of the EVER-717 collection she could process in the following nine months; Complainant opposed providing technical supervision to technicians; and Complainant took a folder from S1's filing cabinet.
In a memorandum dated February 6, 2006, Complainant denied the charges of misconduct and alleged that S1 yelled at and harassed her. Complainant appealed the suspension on May 9, 2006, but the Agency subsequently issued a memorandum in which it informed Complainant that the suspension would not be effectuated because it was procedurally defective. In a memorandum dated June 12, 2006 Complainant's second-line supervisor (S2) informed Complainant that the Agency would terminate her. The Agency terminated Complainant effective June 24, 2006.
On October 2, 2006, Complainant filed an EEO complaint in which she alleged that the Agency discriminated against and harassed her on the bases of sex (female), age (born in 1950), and in reprisal for prior protected EEO activity when, effective June 24, 2006, the Agency terminated her employment.
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 AJ. Complainant timely requested a hearing, and the AJ held a hearing on May 28, 2008 and May 30, 2008.
The Hearing
During the hearing, Complainant testified that, shortly after S1 hired her, S1 began to discriminate against Complainant and sought any excuse to undermine Complainant. Complainant further testified that S1 disregarded and denigrated her advice and recommendations about archives, a field in which Complainant is experienced and well-trained. Complainant stated that this made it difficult for her to do her job efficiently and created a hostile work environment that made her ill. Complainant testified that S1 screamed at her on various occasions and threatened to terminate her employment. Complainant also testified that S1 micromanaged everything, and if Complainant tried to do anything on her own, she risked having S1's wrath come down upon her.
Complainant further testified that she engaged in EEO activity when, beginning in March 2006, she held meetings with S1 and the EEO Counselor. However, Complainant stated that the EEO Counselor merely acted as an observer to protect her from abuse during the meeting, and she did not believe any claim of discrimination was raised during the meeting. HT, p. 617.
S1 testified that she began to have problems with Complainant about three weeks after she was hired. S1 testified that during the October 2005 Dry Tortugas assignment, Complainant had a disagreement with the team leader about the work the team leader wanted Complainant to do. S1 testified that Complainant suggested that she be allowed to use power tools to work on the cannons, but S1 and the team leader rejected that suggestion. S1 stated that Complainant seemed to become dissatisfied and unwilling to share information, and the quality of her work became questionable after that incident. She stated that Complainant yelled at her about how she did not take care of her employees and did not care about their safety, and she and Complainant engaged in a heated discussion.
S1 further testified that she continued to have problems with Complainant after the Dry Tortugas assignment, including Complainant's argumentative manner, her refusal to provide requested information, her refusal to follow directions, and her seeming resistance to S1 as her supervisor. S1 also stated that Complainant submitted an inventory report in Word format, although she was repeatedly instructed to format it in the Excel program.
S1 testified that, in early January 2006, she met with Complainant to place her on a quarterly performance plan and to inform her that she would be terminated if she did not improve her conduct in three months. S1 testified that Complainant requested to participate in a course called Fundamentals I, which is an introduction to the Agency. S1 testified that she told Complainant that she wanted her to complete ANCS1 Plus training first because that was more directly relevant to her job. "We ensued [sic] with a three or four-month back and forth of have you taken this training yet; no, I haven't. I can't get the disk back; I gave the disk away," S1 stated. Hearing Transcript (HT), p. 178. S1 further testified that when she told Complainant that she wanted her to work on ANCS training, Complainant responded that it was unfortunate that S1 did not recognize the importance of the Fundamentals I course, which S1 felt was patronizing and condescending. S1 further testified that Complainant exhibited a poor attitude after her suggestion to power tools on the cannons was rejected by S1 and the conservator/team leader. She stated that Complainant exhibited a pattern of no longer offering information, which resulted in not providing information about health and safety issues.
S2 testified that S1 first informed him about problems with Complainant's conduct and performance the week after the Dry Tortugas assignment ended. S2 further testified that, in early January 2006, S1 reported that she had increasing concerns about Complainant's conduct and that she had consulted with the Human Resources Specialist about the matter. S2 also testified that S1 submitted a document entitled "Summary of Conduct Issues" on January 6, 2006, which was based on documentation S1 kept from October 2005 until early January 2006. S2 testified that after meeting with Human Resources, S1 proposed to suspend Complainant and completed an employee performance appraisal plan for Complainant which laid out specific goals to be achieved. S2 stated that, as the deciding official for the proposed suspension, his job was to conduct a thorough investigation regarding these charges and to determine what penalty was appropriate.
S2 testified that he had five meetings with Complainant regarding Complainant's response to S1's allegations about Complainant's misconduct. S2 testified that Complainant also gave him a memorandum on February 6, 2006, in which she provided detailed responses to S1's allegations about her, and he gave S1 a copy of the memorandum. S2 testified that on February 7, 2006, and in other meetings with her, Complainant alleged to him that S1 did not treat her professionally; subjected her to a hostile work environment; yelled and screamed at her; that S1 did not have the appropriate training or experience to oversee an archives program; and S1 would not take suggestions from her. S2 stated that he interviewed 24 people regarding the allegations Complainant lodged against S1.
Additionally, S2 testified that, on March 10, 2006, he attended a meeting with Complainant and the EEO Counselor about the allegations, but Complainant did not raise any allegations about sex, age, or reprisal discrimination during any of his meetings with her. HT, pp. 379, 380. S2 stated that after the conclusion of his investigation, he prepared a memorandum detailing each allegation S1 made against Complainant as well as each allegation Complainant made about S1. He stated that, based upon his investigation, he concluded that Complainant's allegations about S1 were "not sustained." HT, p. 338. He stated that he interviewed an employee who reported that she heard an intense discussion between two employees through that air conditioning duct regarding specific job duties, but she specially recalled that there was no yelling or screaming.
S2 further testified that of the seven allegations S1 made against Complainant, he concluded that five of those were sustained on the basis of the record and interviews, and the remainder were not sustained because there was not adequate written documentation to support them. S2 testified that he initially sustained Complainant's suspension, but it was rescinded. He stated that on June 6, 2007, a Labor Relations Specialist called him and Human Resources officials and advised them that Complainant had filed a grievance on the matter, and that a suspension was not an appropriate remedy for a trial employee because counseling and termination were the only appropriate options. S2 stated that termination was appropriate because Complainant had received counseling, been placed on a performance plan, and the Agency had brought in an independent expert to assist Complainant, yet Complainant still had important performance issues processing the archives.
The Deputy Superintendent for Everglades and Dry Tortugas National Parks (Deputy) testified that he approved Complainant's termination because of her performance and conduct issues, which included insubordination and a consistent refusal to perform duties despite being repeatedly told to do so. He stated that he came to this conclusion after talking with S1 and S2. The Deputy stated that before Complainant was terminated, the Agency conducted an investigation into Complainant's conduct and Complainant's allegations against S1. He stated that he initially thought that suspending Complainant was the appropriate course of action to take in this case because it was consistent with principles of progressive discipline. However, the Deputy testified that the suspension was rescinded because the Human Resources Specialist advised management that the Agency could only terminate or counsel a term employee in her first-year trial period, but progressive discipline was not appropriate. He testified that Complainant was terminated because there had been enough efforts to try to improve her performance through discussions with her, and there was no other option left but termination. The Deputy stated that he concurred with the notice of termination that was issued, met with Complainant after she received the notice, and ultimately decided to sustain the decision to terminate Complainant.
The Human Resources Specialist (HR Specialist) testified that she met with S1 on January 3 and 6, 2007, to discuss performance issues S1 had with Complainant. The HR Specialist testified that she advised S1 that Complainant could be terminated because she still was within her one-year trial employment period. She stated that the suspension was rescinded because Human Resources officials determined that termination was the proper course of action to take in this case.
The AJ's Decision
At the beginning of the hearing, the AJ addressed the Agency's and Complainant's requests to have three employees (C1, C2, and C3) testify at the hearing. The AJ denied Complainant's request to have C1 and C3 testify at the hearing on the basis that C1's and C3's testimony would have been unduly repetitive. Moreover, the AJ drew an adverse inference with respect to any testimony C3 would have provided on the basis that Complainant failed to comply with his order compelling discovery. Specifically, the AJ determined that Complainant failed to provide a requested copy of a recording, ostensibly made by C3, to the Agency as directed. Nevertheless, the AJ opined that the same conclusions about the legal merits of Complainant's case would have been reached even without the imposition of the adverse inference. With respect to C2, the AJ determined that he could not compel C2 to testify because C2 had not been a federal employee since October 20, 2007.
On August 7, 2008, the AJ issued a decision in which he found that Complainant failed to establish a prima facie case of age, sex, or reprisal discrimination. The AJ further determined that Agency officials provided "very credible" testimony during the hearing, and the evidence established that Complainant repeatedly resisted S1's instructions and directions, particularly in connection with the processing of the EVER-17 collection. The AJ determined that the record was replete with examples that corroborated S1's credible testimony that Complainant failed to follow instructions and did not accept responsibility for her actions. "What the Complainant failed to understand and accept is that [S1] was her supervisor and she was required to accept [S1's] instructions, even if she disagreed with them," the AJ concluded. AJ's Decision, p. 19. The AJ found that the Agency had "every justification" for terminating Complainant, and Complainant failed to prove that the Agency's reasons were pretext for unlawful discrimination. Additionally, the AJ found that the Agency's actions were not sufficiently severe or pervasive to constitute a hostile work environment. The Agency subsequently issued a final order fully implementing the AJ's findings.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the EEO investigator failed to interview C1 and C2, who allegedly overheard incidents wherein S1 yelled at and threatened Complainant. Complainant further contends that the investigator failed to interview C3, who had knowledge of S1's mistreatment of older workers. Complainant contends that S1 threatened C3, the only other employee over 40 years of age that she supervised. Additionally, Complainant maintains that the AJ erred when he drew an adverse inference against Complainant because she failed to comply with his order to produce a certified transcription and audio recording of S1 that was recorded by C3. Complainant contends that she did not submit the requested documentation because it was already in the investigative record, and the AJ had said that anything already in the investigative record did not have to be resubmitted. Complainant maintains that she submitted the digital file to the investigator, and the file should have been readily available to the Agency or the AJ.
Complainant further contends that the AJ had an "erroneous understanding of the facts" when he made his pre-hearing rulings and misinterpreted and misapplied the law. Complainant also maintains that the AJ erred when he refused to allow C1 to testify at the hearing. Complainant also contends that the AJ improperly found that she failed to prove that she was subjected to unlawful discrimination. Complainant reiterates her claims that S1 treated her in a harsh and negative manner, interfered with her ability to properly conduct her duties, denigrated her archival abilities, sullied her professional reputation, and had her terminated from her position on the pretext of insubordination and poor performance. The Agency requests that we affirm its final order.
STANDARD OF REVIEW
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (MD-110), Chap. 9, at � VI.B. (Nov. 9, 1999).
ANALYSIS AND FINDINGS
The Investigation and Hearing Stage
Complainant contends that the investigation was inadequate and biased. Specifically, Complainant maintains that the investigator failed to interview necessary witnesses C1, C2, and C3. We note that EEO regulations provide that an agency shall develop an impartial and appropriate factual record upon which to make findings on the claims raised by the complaint. 29 C.F.R. � 1614.108(b). An appropriate factual record is one that allows a reasonable fact-finder to draw conclusions as to whether discrimination occurred. Id. Ultimately, agencies are responsible for conducting an appropriate investigation of complaints filed against them. EEO MD-110 at Chap. 5, � V.A. Accordingly, the investigator is required to conduct a thorough investigation, identifying and obtaining all relevant evidence from all sources regardless of how it may affect the outcome. Id. at Chap. 6, � VI.D. In essence, an investigator must exhaust those sources of information likely to support both the positions of a complainant and the agency. Id.
Complainant maintained that C1 and C2 could have testified that they overheard S1 yelling at Complainant through a vent. Complainant procured a copy of a one-page letter in which C1 reported that she heard but did not see an encounter in which "the boss" was upset with "the inferior" and berated the inferior in a raised, aggressive tone about work that had not been completed. ROI, p. 108. C1's letter further stated that in another instance, the boss told the inferior in a more restrained voice tone her expectations, and that she would fire the inferior if the work was not completed. C1 concluded that she did not understand what work was getting done or not done, but she though the encounter was extremely unprofessional and aggressive.
Likewise, Complainant contends that C2 could have testified that Complainant never threatened S1 because C2 heard her conversations with S1 through an air-conditioning duct in the adjacent office. The record contains a copy of C2's response to a questionnaire that elicited employee statements about the allegations against Complainant and S1. ROI, pp. 357, 358. In her March 23, 2006, response, C2 reported that in January 2006, she overhead an argument between two women about job duties that became loud and intense but did not involve screaming or yelling by either party. We note that C1 and C2 overheard encounters through a vent, did not visually observe the incidents, did not know the context of the encounters, and did not identify the persons involved in the encounters. As such, C1 and C2 are not material witnesses because they could not identify with certainty the parties involved in the incident or the context of the encounters. With respect to C3, Complainant maintains that C3 could offer testimony about the Dry Tortugas assignment and that S1 threatened to "get rid" of C3. Additionally, Complainant notes that C3 filed a grievance against S1 in 2007. We determine that C3's testimony was largely repetitive of the testimony provided by Complainant and Agency officials. Further, much of the expected testimony from C3 would have been specific to C3's interactions with S1 and not relevant to Complainant's case. Consequently, we cannot find that the investigator should have interviewed C3. Accordingly, after a thorough review of the record, we find that the Agency developed an impartial and appropriate factual record that allows us to draw conclusions as to whether discrimination occurred.
Likewise, we find that AJ did not abuse his discretion when he denied Complainant's request to have C1, C2, and C3 testify at the hearing for the same reasons. We note an AJ has broad discretion in the conduct of a hearing, including matters such as issuing discovery orders, scheduling, and witness selection. See 29 C.F.R. � 1614.109(e). Likewise, the AJ has the obligation to exclude irrelevant or repetitious evidence. Id.
Additionally, the AJ imposed an adverse inference against Complainant regarding any evidence C3 might have provided in this case. An AJ has the authority to sanction either party for failure without good cause shown to fully comply with an order. 29 C.F.R. � 1614.109(f)(3). In the context of hearings, an AJ may take action against a party that fails, without showing good cause, to fully respond in a timely fashion to requests for evidence and information, including the investigative file. 29 C.F.R. � 1614.109(f)(3). Such sanctions may include an adverse inference that the requested information would have reflected unfavorably on the party refusing to provide the requested information, exclusion of other evidence offered by the party refusing to provide the requested information, or issuance of a decision fully or partially in favor of the opposing party, or other actions, as appropriate. Id. However, such sanctions must be tailored in each case to appropriately address the underlying conduct of the party being sanctioned. A sanction may be used to both deter the non-complying party from similar conduct in the future, as well as to equitably remedy the opposing party. If a lesser sanction would suffice to deter the conduct and to equitably remedy the opposing party, an AJ may be abusing his discretion to impose a harsher sanction. Hale v. Dep't of Justice, EEOC Appeal No. 01A03341 (Dec. 8, 2000).
In this case, the Agency filed a motion to compel requested discovery evidence after Complainant failed to produce "any and all documents, tape recordings, and written statements that relate to any occasion on which you contacted the Agency EEO Office regarding matters that serve as the basis of your Complaint." On January 7, 2008, the AJ ordered Complainant to provide a copy of an audio file recording of S1 purportedly threatening to "get rid" of C3.
Complainant testified that she did not provide the audio file to the Agency during discovery because she had already given the audio file to the investigator, and the AJ had indicated that the parties did not have to provide evidence during discovery that was already in the investigative file. Although Complainant contends that she provided a copy of the audio file to the investigator, the ROI contains a copy of an uncertified transcript of a recording which identifies S1 as engaging in a conversation with an "unknown" person. ROI, Exhibit 33, p. 541. Complainant testified that the investigator lost the audio file, but she (Complainant) had a digital copy of the audio file on her computer. HT, pp. 423, 424.
In this case, there were legitimate questions about the identity of the persons on the audio file and whether the transcript in the investigative file accurately reflected the contents of the original audiotape. As such, the Agency requested a copy of the audio file to verify its authenticity. The purported transcript of the audiotape in the investigative file did not satisfy the Agency's discovery request. Moreover, the AJ's order informed Complainant that she must provide the Agency with a copy of the requested audio file or sanctions would be imposed against Complainant. We find that Complainant did not provide good cause why she did not provide a copy of the audio file to the Agency when ordered to do so by the AJ, although she possessed a copy of the audio file. We note that, during the hearing, Complainant belatedly attempted to provide a copy of the audio file to the Agency, but the Agency objected to Complainant's attempt. HT, p. 405.
Further, we find that the AJ did not abuse his discretion when he sanctioned Complainant for failing to obey his order by imposing an adverse inference against Complainant with respect to any evidence C3 might have provided in this case. In so doing, we find that this sanction was appropriately tailored to respond to Complainant's failure to show good cause for her actions and to equitably remedy the opposing party. Royal v. Dep't of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009); Gray v. Dep't of Defense, EEOC Appeal No. 07A50030 (Mar. 1, 2007); Hale v. Dep't of Justice, EEOC Appeal No. 01A03341 (Dec. 8, 2000).
Disparate Treatment and Hostile Work Environment
Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Foundation for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978).
Once Complainant has established a prima facie case, the burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983).
To establish a claim of harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
In this case, we concur with the AJ's finding that the Agency provided legitimate, non-discriminatory reasons for terminating Complainant.2 Specifically, the Agency stated that Complainant was terminated because she repeatedly engaged in insubordinate conduct and had performance problems during her one-year trial employment period. The record reflects that management documented Complainant's conduct and performance problems, provided her with a performance improvement plan, provided her with an opportunity to respond to management's allegations, conducted a thorough investigation into Complainant's conduct and counterclaims, brought in an independent expert to assist Complainant, and consulted with Human Resources officials before terminating her employment. Further, the AJ found the testimony of Agency officials to be credible and concluded that the Agency was justified in terminating Complainant because of legitimate concerns about Complainant's repeated resistance and lack of cooperation in completing her work assignments. Complainant has not provided any evidence of pretext that would provide a basis to disturb the AJ's findings. Consequently, we find that substantial evidence supports the AJ's conclusion that Complainant failed to prove that she was terminated because of her sex, age, or previous EEO activity.
Complainant also contends that S1 subjected her to a hostile work environment because S1 yelled at her, threatened to terminate her employment, micromanaged her work, sullied her reputation, and disregarded and denigrated her advice about archives. We concur with the AJ's determination that these incidents were not sufficiently severe or pervasive to constitute a hostile work environment. Moreover, although there is ample evidence that S1 and Complainant had an abrasive and stormy relationship, Complainant failed to show that any of these incidents were unlawfully motivated by discriminatory or retaliatory animus. The Commission notes that Title VII and the ADEA are not civility codes. Rather, they forbid "only behavior so objectively offensive as to alter the conditions of the victim's employment." Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Consequently, we find that substantial evidence supports the AJ's finding that Complainant was not subjected to a hostile work environment because of her age, sex, or previous EEO activity.
CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the final Agency order because the Administrative Judge's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (Nov. 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 24, 2012
Date
1 The definition of this abbreviation is not readily apparent in the record.
2 For purposes of analysis, we assume, without so finding, that Complainant established a prima facie case of unlawful discrimination.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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