EEOC Appeal No. 0720150027
03-15-2016
Melani F. v. Dep't of Homeland Sec.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Melani F.,1
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0720150027
Hearing No. 540-2012-00186X
Agency No. HS-TSA-01851-2011
DECISION
Following its May 29, 2015, final order, the Agency filed a timely appeal which the Equal Employment Opportunity Commission (EEOC or Commission) accepts pursuant to 29 C.F.R. � 1614.405(a). On appeal, the Agency requests that the Commission affirm its rejection of an EEOC Administrative Judge's (AJ) finding of discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Agency also requests that the Commission affirm its rejection of the relief ordered by the AJ.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Transportation Security Officer (TSO or Screener) at the Agency's International Airport facility in Salt Lake City, Utah.
The record indicated that Complainant began her employment with the Agency on September 22, 2002. As a TSO, Complainant engaged in threat mitigation activities to protect aviation and other transportation modes. She performed all security functions related to the screening of people, property and cargo using Agency procedures, techniques and technology. The record showed that Complainant knew her job duties and satisfactorily performed them. She was asked to provide on-the-job training to new employees. She had also completed over 100 training classes with the Agency.
Pursuant to its authority under the Aviation and Transportation Security Act of 2001 (ATSA), the Agency developed a screener recertification process and tests for evaluating screen proficiency. One test, referred to as the "OMA," was provided to TSOs annually for recertification. The OMA test asks true/false and multiple choice questions about baggage-screening scenarios. In 2011, a TSO was given the opportunity to take the OMA recertification exam up to three times.
Complainant took her first OMA exam on July 3, 2011, and failed. She took the exam a second time and failed again. Prior to the third OMA exam, on July 17, 2011, Complainant informed her supervisor ("Supervisor") that she wanted someone to read the questions on the OMA exam to her. The Supervisor contacted the Training Manager to request a reader for Complainant. The Training Manager denied the request citing Agency policy.
The Supervisor informed Complainant of the denial that same day and Complainant asked for reconsideration, indicating her request was motivated because she had dyslexia. The request for the reader was denied again. The Training Manager sent the Supervisor an email dated July 18, 2011, stating that she had received a similar reader request in the past and that the Agency "has indicated that reading English is a requirement of the TSO job function, thus she must read the questions herself." As such, Complainant's request for a reader was denied.
Complainant took the third OMA exam on July 20, 2011. Complainant was permitted to turn the exam upside down on the computer screen. She failed for the third time. As a result, Complainant was issued a notice of proposed removal dated August 9, 2011. While the proposed removal was pending, Complainant was reassigned to a single function checkpoint position as a travel document checker and exit lane monitor.2
On October 7, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability (dyslexia) when:
1. On July 18, 2011, Complainant's requested accommodation - to have someone read the test questions to her - was denied.
2. On July 20, 2011, the Complainant did not pass the OMA testing for the third time because she was not provided any remediation or simulation time.
3. On July 24, 2011, the Complainant was denied training.
4. On July 26, 2011, the Complainant failed a TDC test.
5. On August 7, 2011, the Complainant was denied training.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The Agency moved for summary judgment on October 25, 2013. The AJ granted summary judgment in favor of the Agency, on all but one claim.
In her December 10, 2014 decision, the AJ found that, as to claim 1, there were material facts still in dispute regarding Complainant's request for a reasonable accommodation on July 18, 2011. The AJ also indicated that Complainant was not challenging the ATSA qualification standard itself, only the denial of her request for accommodation in taking the OMA exam, which she eventually passed on February 14, 2012. The AJ concluded that claim (1) should proceed to a hearing. As for claims (2) - (5), the AJ determined that Complainant failed to provide evidence to substantiate these claims. As such, the AJ proceeded with a hearing solely based on Complainant's claim of denial of reasonable accommodation on July 18, 2011.
The AJ held a hearing on March 12 and 13, 2015, and issued a decision on April 13, 2015. The AJ found that the ATSA does not preempt the Rehabilitation Act in this case. The AJ noted that Complainant alleged a denial of reasonable accommodation and did not challenge a qualification or recertification requirement. The Agency noted that reading is a requirement for the TSO position. However, the AJ held that the OMA is a recertification test to assess a screener's knowledge and understanding of the Agency's protocol for screening checked baggage. The reader, as requested by Complainant as a reasonable accommodation, would read the questions on the test. The AJ also noted that the OMA is not a test of reading proficiency as related to the TSO position. Therefore, the AJ concluded that the reading requirement of the test was not a valid test of reading. As such, the AJ concluded that the ATSA did not preempt Complainant's reasonable accommodation claim under the Rehabilitation Act.
The AJ found that Complainant has dyslexia, which is a permanent learning disorder. She was first diagnosed with this disorder in 1981. The AJ noted that the impairment limited Complainant's ability to learn, read, concentrate, and think. She learned better by listening and performing tasks rather than by reading. Complainant averred that stress affects her dyslexia more. She noted that she was better able to read upside down when she is stressed. Complainant testified that during the time of her testing in July 2011, she felt very stressed. Complainant had seen a co-worker die in her presence in April 2011, and two weeks later, her son-in-law had committed suicide. Complainant provided a psychologist's report from 1995 which indicated that Complainant tested at a third grade reading level and was diagnosed with a reading disorder and a severe learning disability. The AJ also observed at the hearing that Complainant had difficulty reading when she was asked to read from her deposition testimony. The AJ stated that Complainant turned the document upside down, but still made errors while reading the document.
Based on these findings, the AJ determined that Complainant has dyslexia and/or a reading disorder. The AJ noted Commission case law concluding that learning disabilities which limit one's ability to learn, read and write can be considered a disability for purposes of the Rehabilitation Act. The AJ determined that Complainant established that she is an individual with a disability. Furthermore, the AJ found that Complainant was qualified based on her documented and undisputed ability to perform the essential function of the TSO position in a satisfactory manner. As such, Complainant was a qualified individual with a disability.
The AJ then turned to the issue of whether the Agency's denial of reasonable accommodation constituted a violation of the Rehabilitation Act. The AJ held that Complainant made her request for a reader on July 17, 2011. Complainant also indicated, later that day, that she had dyslexia. At that point, the AJ determined that Complainant had requested an adjustment to the testing policy due to her medical condition. The AJ held that the Agency failed to engage in the interactive process to address her reasonable accommodation request. The AJ noted that the Supervisor did not inform the Training Manager of Complainant's condition and there was no further discussion about Complainant's request. The proctor allowed Complainant to turn the screen upside down during the test but this was not addressed in advance as a potential reasonable accommodation. In addition, the AJ noted that Complainant testified that the stress of the testing environment exacerbated her condition. Had the questions been read, the AJ determined that Complainant would not have had an issue of reading comprehension. The AJ then turned to the Agency's assertion that it had a blanket policy prohibiting the use of a reader. The AJ determined that the Agency's purported policy violated the Rehabilitation Act.
As remedy, the AJ noted that Complainant had not lost pay due to the denial of reasonable accommodation. During the hearing, Complainant asserted that she was denied overtime, but she failed to provide support for this assertion. The AJ then determined that Complainant was entitled to $5,000 in non-pecuniary compensatory damages. The AJ found that Complainant was depressed, stressed, anxious and worried about losing her job. Complainant cried and had her sleep affected. Complainant was issued the Notice of Proposed Removal until it was rescinded five months later when she passed the OMA exam in February 2012. Based on the evidence provided, the AJ determined that Complainant was entitled to $5,000. The AJ determined that Complainant failed to provide evidence for pecuniary damages.
In addition, the AJ ordered the Agency to end its blanket policy of denying employees reasonable accommodation in the form of a reader for the OMA recertification test. The AJ also ordered that the Agency provide training and inform management of the possibility of discipline for future violations. The AJ also stated that the posting order notifying employees of the finding would be placed in the facility as well as the location of the Agency's reasonable accommodation program.
Subsequently, the AJ asked Complainant's attorney (Attorney) to submit a petition for fees and costs. Based on the submission, the AJ found that Complainant was entitled to $ 26,197.00 in attorney's fees and $ 1,955.58 in costs associated with the prosecution of her EEO complaint.
The Agency issued a final order, rejecting the AJ's finding that Complainant proved that the Agency subjected her to discrimination as alleged. In its June 18, 2015 appeal brief, the Agency argued that the AJ: 1) improperly determined that Complainant was an individual with a disability; 2) incorrectly concluded that Complainant was qualified for the position; 3) improperly found that Complainant was denied a reasonable accommodation and that she was entitled to an accommodation of her choice; and 4) failed to dismiss the matter for failure to state a claim for Complainant's challenged a qualification standard.
The Agency asserted that Complainant failed to establish that she was an individual with a disability. The Agency noted that the AJ excluded Complainant's medical evidence from 1981 as a sanction against Complainant. The Agency argued that Complainant failed to provide medical evidence to support her claim of coverage under the Rehabilitation Act. The Agency argued that the AJ should have taken an adverse inference that Complainant did not have dyslexia. The Agency then asserted that Complainant failed to establish she was qualified because she had failed the OMA recertification exam, thus not meeting the qualification standards for a TSO. In addition, the Agency argued that, assuming Complainant has dyslexia, she did not meet the screener requirement to be proficient in reading and writing English. The Agency noted that Complainant testified at the hearing that she had problems with her ability to concentrate and her short term memory. As such, the Agency claimed that she was not qualified for the position in question.
The Agency then turned to the issue of the AJ's finding that it denied Complainant a reasonable accommodation. The Agency first asserted that it had provided Complainant with a reasonable accommodation, just not the accommodation that she specifically requested. The Agency noted that Complainant requested a reader. The Agency argued that it engaged in the interactive process to accommodate Complainant. When she was denied the reader, Complainant asked to turn the screen upside down. The Agency indicated that Complainant was allowed to do so. Thus, the Agency asserted that it provided Complainant with a reasonable accommodation. The Agency also noted that Complainant did not suffer any harm as she was not actually removed and was given duties to perform until she took the exam again in February 2012, when she finally passed. At that time, the Agency indicated that she made a formal request for reasonable accommodation. The request for a reader was denied in January 2012. In the alternative, the Agency allowed Complainant to take the exam for a fourth time in a private space with additional time. The Agency argued that it provided Complainant with effective accommodation and Complainant was able to pass the exam on her fourth attempt.
Finally, the Agency asserted that the claim raised by Complainant constitutes an impermissible challenge to the Agency's screener qualifications. Such a claim, the Agency argued was in conflict with the ATSA. The Agency indicated that Complainant was required to demonstrate that she can read. As such, she could not be provided with a reader as an accommodation for taking the OMA exam. The Agency asserted that the Commission was given no authority to participate in the determinations of the screener qualifications. The Agency concluded that because the requirements of the Rehabilitation Act and the ATSA are in conflict, the Commission should dismiss the instant complaint and reject the AJ's finding of discrimination.
Complainant responded through her Attorney on appeal. Complainant requested that the Commission affirm the AJ's decision finding that the Agency failed to provide Complainant with a reasonable accommodation. Complainant asserted that she requested a reasonable accommodation on July 17, 2011, at the latest. The Agency failed to engage in the interactive process and as a result, denied Complainant's request for a reader. Furthermore, the Agency's alleged accommodation of allowing Complainant to flip the screen was not an effective accommodation. Moreover, she noted that the proctor did not originate the suggestion of flipping the screen nor was he told to allow Complainant to do so. Further, Complainant argued that the OMA was not a test of ATSA standards of reading, speaking or writing English. In conclusion, the Attorney asked that the Commission affirm the AJ's decision finding that the Agency failed to provide a reasonable accommodation to a qualified individual with a disability in violation of the Rehabilitation Act, as well as her orders of make whole relief.
ANALYSIS AND FINDINGS
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 EEOC Management Directive 110, Chapter 9, at � VI.B. (Aug. 5, 2015).
Summary Judgment (Claims 2 - 5)
We note that Complainant, the Attorney and the Agency did not contest the AJ's decision without a hearing regarding claims (2) - (5). We discern no basis to disturb the AJ's finding of no discrimination regarding these claims. As such, we affirm the AJ's decision without a hearing with respect to claims (2) - (5).
Claim 1 - EEOC's Jurisdiction
The Commission notes, as a preliminary matter, that it has jurisdiction over the complaint at issue. The ATSA does not divest the Commission of jurisdiction over complaints brought by security screeners against TSA under the Rehabilitation Act or other statutes the Commission enforces. While Congress gave TSA broad authority to establish terms and conditions of employment for security screeners, that authority does not include complete exemption from � 501 of the Rehabilitation Act and the other employment discrimination laws. Accordingly, the EEOC has authority to hear complaints involving security screener positions. See Getzlow v. Dep't of Homeland Sec., Appeal No. 01200532861 (June 26, 2007).
Whether a complaint by a security screener states a claim under the Rehabilitation Act must be determined on a case-by-case basis, in light of the specific allegations made, and will depend on whether there is any conflict between the ATSA-mandated qualifications and the complainant's Rehabilitation Act claim. The Commission recognizes that the ATSA grants the Under Secretary of Transportation the authority to establish hiring criteria and a qualifying examination for security screening personnel. 49 U.S.C.A. �� 44395(e)(2)(A), 44395(e)(3). The ATSA also gives the Under Secretary authority to establish additional qualifications as he sees fit. 49 U.S.C.A. � 44395(e)(2)(A). In so doing, Congress clearly indicated that such qualifications must be met "notwithstanding any provision of law." 49 U.S.C.A. � 44935(e)(2)(A). In our view, this means that the requirements of the Rehabilitation Act cannot negate or override the ATSA-mandated qualification standards. However, TSA must comply with the requirements of the Rehabilitation Act where there is no conflict between the ATSA-mandated qualification standards and the requirements of the Rehabilitation Act. Id.
In this case, Complainant has not challenged an ATSA-mandated standard. Complainant did not seek to avoid taking and passing the mandated OMA exam. Rather, she sought a reasonable accommodation in the administration of the exam. The record is clear that the OMA is a recertification test to assess a screener's knowledge and understanding of the Agency's protocol for screening checked baggage. The reader, as requested by Complainant as a reasonable accommodation, would have read the questions on the test, but would not have assisted her in selecting the correct answers. The Agency's argument concerning reading proficiency as a qualification standard for the TSO position is not relevant to this matter, as the OMA not a test of reading proficiency but of knowledge of baggage screening. As such, we conclude that the ATSA did not preempt Complainant's reasonable accommodation claim under the Rehabilitation Act and review of this matter is within the Commission's jurisdiction.
Rehabilitation Act Claim
Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. 29 C.F.R. � 1630.9. In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) she is an "individual with a disability," as defined by 29 C.F.R. � 1630.2(g); (2) she is a "qualified" individual with a disability pursuant to 29 C.F. R. � 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) (Reasonable Accommodation Guidance).
An individual with a disability is one who: (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such impairment; or (3) is regarded as having such an impairment. 29 C.F.R. � 1630.2(g). Major life activities include such functions as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 29 C.F.R. � 1630.2(i). Examples of other major life activities include, but are not limited to, sitting, standing, lifting, and reaching. 29 C.F.R. Part 1630 App. � 1630.2(i). They also include thinking, concentrating, interacting with others, and sleeping. See EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities, EEOC No. 915.002 (Mar. 25, 1997)
Upon review of the record, we find that Complainant has established that she has an impairment, namely dyslexia. Complainant provided documentation from 1995 stating that her reading was extremely poor particularly in the areas of short term memory for sequences, attention span, and ability to concentrate. The 1995 evaluation diagnosed Complainant with a reading disorder and a disorder of written expression. In its motion of summary judgment filed with the AJ, the Agency stated these findings in its statement of undisputed material facts. Complainant testified that she has been diagnosed with dyslexia. The Agency did not present any evidence to the contrary at the hearing stage. The AJ also noted in her decision that when Complainant was provided with her deposition from which to read, she had difficulty. Furthermore, the AJ indicated that even when Complainant turned the document upside down, she still continued to have difficulty reading the deposition. Based on the totality of the record, we find that Complainant has provided sufficient evidence, and the AJ's determination that Complainant is an individual with a disability is supported by the record. See Medina v. Dep't of Justice, EEOC Appeal No. 01954883 (Dec. 5, 1997) (finding that Complainant still demonstrated with enough information that she was an individual with a disability with little documentary evidence regarding her dyslexia).
We now turn to the issue of qualified. We note that Complainant had been employed as a TSO with the Agency since 2002. She was performing successfully in her position without issue at the time of the events at issue, and even provided training to new employees. She passed the 2010 OMA examination and engaged in numerous trainings provided by the Agency. The Agency argued that Complainant was not qualified in 2011 because she failed the OMA examination three times. However, at the time Complainant made her accommodation request in July 2011, she still had one more chance to pass the OMA examination under Agency policy and was allowed to continue performing the full range of screener duties. The Agency also argued that because of Complainant's alleged dyslexia, she did not meet the reading and writing English qualification for the TSO position. Again, we are not persuaded by the Agency's assertions. There is simply no evidence to support this claim. In fact, after Complainant failed the OMA exam the third time, the Agency reassigned her to a document checking position, which required her to read and comprehend written identification and travel documents. As such, we are not persuaded by the Agency's claim that the AJ erred in finding that Complainant was qualified when she made her request for a reasonable accommodation on July 17, 2011.
Finding that Complainant is a qualified individual with a disability, we must determine if the Agency's action constituted a violation of the Rehabilitation Act. Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. � 1630.9.
The Agency asserted that the AJ found a violation in the failure to engage in the interactive process. The Commission previously has held that an agency cannot be held liable solely for failure to engage in the interactive process, but can be found liable if the failure to engage in the interactive process resulted in the agency's failure to provide reasonable accommodation. Broussard v. U.S. Postal Serv., EEOC Appeal No. 01997106 (Sept. 13, 2002), req. to recon. den., EEOC Request No. 05A30114 (Jan. 9, 2003). Here, it is clear that the Agency not only failed to engage in the interactive process, but also denied Complainant's request for a reasonable accommodation in the form of a reader. The record indicates that on July 17, 2011, Complainant informed the Supervisor that she needed a reader for the OMA exam. He, in turn, asked the Training Manager for a reader. The Training Manager flatly denied the request and made no inquiry as to reason Complainant needed the reader. Subsequently, Complainant informed the Supervisor that she needed the reader due to her dyslexia. The Training Manager sent the Supervisor an email dated July 18, 2011, stating clearly that the Agency would not provide the requested reader.
Neither the Supervisor nor the Training Manager engaged in a discussion regarding Complainant's need for a reader. The Supervisor did not request additional information from Complainant. The Training Manager neglected to ask why Complainant needed a reader for the OMA test. To the extent the Agency asserted that it provided a reasonable accommodation when Complainant was permitted for the third exam to turn the screen upside down, there is no indication that this would have been effective or that it was in fact an accommodation. Further, there is no indication that Complainant had to take the test right-side up.
The Agency attempted to show that it did provide Complainant a reasonable accommodation when she took the exam a fourth time and passed. However, again, Complainant requested a reader which was denied through the Agency's reasonable accommodation procedures. Just because Complainant passed, the Agency argued that they provided her with an effective accommodation, albeit not the accommodation of her choice. We find fault in the Agency's arguments. First, the Agency clearly denied Complainant's July 17, 2011 request for a reasonable accommodation which is the claim at issue herein. Further, there is no evidence establishing that the alleged accommodations provided by the Agency to Complainant in February 2012 were the reasons she passed the exam. As such, we find that the AJ properly determined that the Agency failed to provide Complainant with any reasonable accommodation in July 2011, violating the Rehabilitation Act.
Attorneys Fees and Costs and Compensatory Damages
We note that Complainant, the Attorney and the Agency do not contest the AJ's award for fees, costs, and compensatory damages. We discern no basis to disturb the AJ's determinations. As such, we affirm the AJ's decision regarding remedies.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final order rejecting the AJ's decision and REMAND the matter for further processing in accordance with the ORDER below.
ORDER (C0610)
The Agency is ordered to take the following remedial action:
1. To the extent the Agency has not done so, the Agency shall provide Complainant with $5,000 in non-pecuniary damages; $26,197 in attorney's fees; and $1,955.58 in costs associated with the prosecution of her EEO complaint.
2. Within 120 days of the date this decision becomes final, the Agency shall provide training to the Supervisor and the Training Manager regarding their obligations in providing reasonable accommodation under the Rehabilitation Act. The Commission does not consider training to be disciplinary in nature.
3. The Agency shall consider taking disciplinary action against the Supervisor and the Training Manager. The Agency shall report its decision. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline.
4. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented.
POSTING ORDER (G0914)
The Agency is ordered to post at its Salt Lake City International Airport facility and the Reasonable Accommodation office copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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, 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 (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
March 15, 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 It appears that Complainant's employment with the Agency was never terminated and that she passed the OMA recertification exam on February 14, 2012.
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