0720060064
04-05-2007
Paul C. Carroll, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
Paul C. Carroll,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 07200600641
Hearing No. 140-2005-00086X
Agency No. 4130040601F06
DECISION
Following its May 19, 2006 final order, the agency filed a timely appeal
in which it requests that the Commission affirm its rejection of an EEOC
Administrative Judge's (AJ) finding of discrimination in violation of
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.
BACKGROUND
In 2001, the Air National Guard decided to create an Air Traffic Control
Squadron at the Stanly County Airport in North Carolina. In January 2002,
a vacancy for a Supervisory Air Traffic Control Specialist (Terminal),
GS-13 position was announced. At the time, complainant was employed
as a contract tower manager for Dynamic Science at the Stanly County
Airport in North Carolina. Complainant applied for the position and was
selected as a GS-2152-13 Supervisory Air Traffic Control Specialist at
the 235th Air Traffic Control Squadron, North Carolina Air National Guard.
Complainant was hired on June 1, 2002, for a one year temporary emergency
appointment, with a not to exceed date of May 31, 2003. Regulations
established a maximum age of 30 for Terminal and Center positions;
however, the record reveals that an age waiver may be allowed for those
31 and over on an individual basis. In order to receive a permanent
position, complainant needed an age waiver. Complainant received an
age waiver in January 2003. In April 2003, complainant was advised that
he would not be offered a permanent position. Complainant's temporary
appointment expired on May 31, 2003.
On June 1, 2004, complainant filed an EEO complaint alleging that he
was discriminated against on the bases of age (D.O.B. November 11,
1953) and in reprisal for prior protected EEO activity under the Age
Discrimination in Employment Act of 1967 when:
1. In May 2003, complainant was not selected for the position of
GS-2152-13 Supervisory Air Traffic Control Specialist (Terminal);
2. In June 2003, complainant's temporary appointment was allowed to
expire and he was not converted to GS-2152-13 Supervisory Air Traffic
Control Specialist (Terminal) [excludes basis of reprisal]; and
3. In December 2003, complainant was not selected for two permanent
positions of GS-2152-11 and 13, Non-Supervisory and Supervisory Air
Traffic Control Specialist (Terminal), respectively, under Vacancy
Announcement Numbers 03AUG570645 and 03AUG336438.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request a
hearing before an AJ. Complainant timely requested a hearing and the AJ
held a hearing on March 7-8, 2006 and issued a decision on April 5, 2006.
The AJ noted that pursuant to sanctions the following pertinent admissions
were deemed admitted:
(18) "That the Agency was aware of the Complainant's EEO complaint in
this matter prior to its decision not to select him for the Supervisory
Air Traffic Control Specialist, GS-2152-13 position that he applied for
with the 235th Air Traffic Control Squadron subsequent to the expiration
of the Complainant's temporary appointment in May 2003."
(20) "That the Agency was aware of the Complainant's EEO complaint in
this matter prior to its decision not to select him for the Air Traffic
Control Specialist, GS-2152-11 position that he applied for with
the 235th Air Traffic Control Squadron subsequent to the expiration of
the Complainant's temporary appointment in May 2003."
With regard to the agency's failure to convert complainant to a permanent
position in June 2003, the AJ found that the agency demonstrated during
the year complainant functioned in the Supervisory Air Traffic Control
Specialist position, he lacked interpersonal skills, did not interact well
with the military, and was ignoring the chain of command. Thus, the AJ
found the agency articulated a legitimate non-discriminatory reason for
allowing complainant's temporary appointment to expire without converting
him to a permanent supervisory position. The AJ found complainant failed
to show that the agency's reasons are unworthy of credence or that the
agency was more likely motivated by discrimination. Notwithstanding the
comment by Lieutenant Colonel A that complainant was terminated because
of the need for "new blood," the AJ found that it is clear complainant
was terminated because a review of his performance evidenced an inability
to perform all the duties of his position.
With regard to the denial of the GS-13 Supervisory Air Traffic Control
Specialist position, the AJ noted that complainant is a member of
the protected groups of age and retaliation. The AJ noted that it
is undisputed that complainant applied for and was qualified for the
position. However, the AJ noted that the selectee (S1) was approximately
four years younger than complainant and in the same protected age group.
Thus, the AJ found complainant did not establish a prima facie case of
age discrimination for the GS-13 position. Assuming arguendo complainant
established a prima facie case on the GS-13 position, the AJ noted that
the agency articulated a legitimate, nondiscriminatory reason for his
nonselection: that S1 possessed superior qualifications. The AJ noted
that during the one year period in which he served in the temporary
appointment for the Supervisory position, complainant demonstrated that
he was not the supervisor the agency wanted to transition from a contract
FAA air traffic control to a military air traffic control. The AJ noted
that the agency showed complainant lacked interpersonal skills, did not
interact well with the military, and was ignoring the chain of command.
The AJ found complainant failed to show that the agency's reasons for its
actions were actually pretext designed to mask discrimination. The AJ
found the agency's testimony on complainant's performance more credible
that that of complainant. The AJ noted that S1's qualifications were
superior to those of complainant's because complainant's demonstrated
performance as a supervisor was found insufficient.
With regard to the nonselection for the GS-11 position, the AJ noted
that complainant is a member of the protected groups of age and
retaliation and found it undisputed that complainant applied for and
was qualified for the position. The AJ noted that the selectee (S2)
was thirty-nine years old at the time of the selection while complainant
was fifty years of age. The AJ found complainant established a prima
facie of age discrimination in connection with the GS-11 position.
The AJ noted that the agency stated that complainant was not referred
for consideration for the GS-11 position due to an "administrative
oversight" in providing him with an age waiver. The AJ found that the
denial of the non-supervisory GS-11 position was retaliation based on
the sanction for "deemed admitted" Number 20; the need for "new blood"
comment; the inability of complainant to receive an age waiver; the
"administrative oversight;" and complainant's inability to be selected
for any air traffic controller positions in the United States. The AJ
also found complainant established pretext with regard to his claim of
age discrimination. Specifically, the AJ notes that complainant testified
that Lieutenant Colonel A informed him that the agency wanted "new blood."
Despite Lieutenant Colonel A's denial of making this comment, the AJ
found complainant's testimony more credible. The AJ found the use of
the phrase "new blood" indicates a bias for a younger employee or for
an employee other than complainant. The AJ found the use of "new blood"
in conjunction with the selection of an employee under the age of forty
supports a discriminatory animus for age.
The AJ noted that complainant alleges at the hearing that he was harassed
on the bases of age and retaliation. The AJ noted complainant presented
sufficient evidence that he is a member of the protected groups, but found
he failed to provide sufficient proof that he was subjected to harassment
that was sufficiently severe or pervasive to alter the conditions of
his employment, and create an abusive or hostile environment when his
temporary appointment as Supervisory Air Traffic Control Specialist was
allowed to expire in June 2003; he was not selected to the position
of Supervisory Air Traffic Control Specialist (Terminal); and he was
not selected to the position of non-supervisory Air Traffic Control
Specialist. Thus, the AJ found there was no hostile work environment.
In awarding relief, the AJ noted that complainant is not entitled to
compensatory damages and attorney's fees since these are not allowed under
the ADEA or in age related retaliation cases. In his decision, the AJ
noted that he was not ordering discipline for the Responsible Management
Official (RMO) because the RMO for the offense cannot be determined.
On May 8, 2006, complainant filed an appeal with the EEOC prior to the
agency's issuance of a final decision.
The agency received the AJ's April 5, 2006 decision on April 10, 2006.
The agency simultaneously issued a final order and filed the present
appeal on May 19, 2006, rejecting the AJ's finding that complainant proved
that he was subjected to discrimination with regard to the GS-11 position.
The agency implemented the AJ's finding that complainant failed to prove
that he was subjected to discrimination when he was not converted to a
permanent Supervisory Air Traffic Control Specialist, was not selected
for the GS-13 Supervisory Air Traffic Control Specialist, and failed to
show that he was subjected to harassment.
In the agency's appeal brief, the agency argues that complainant's
evidence of age discrimination relative to the GS-11 position was
unconvincing in comparison to the agency's legitimate, non-discriminatory
reason for not selecting him. The agency acknowledges complainant met
his burden of establishing a prima facie case of age discrimination. The
agency claims it met its burden of showing that the decision not to select
complainant for the GS-11 position was due to an oversight by a personnel
specialist who was responsible for compiling lists of qualified applicants
that was referred to the selecting official. The agency contends that the
specialist mistakenly omitted complainant's name from the referral list.
The agency claimed this omission was not discriminatory and showed that
at least 18 of the 36 applicants on the referral list were over the age
of forty. The agency notes that in support of his burden to show pretext,
complainant relied on a comment by Lieutenant Colonel A that the agency
needed "new blood" in its ranks. The agency notes that this comment
was made by Lieutenant Colonel A at the time he advised complainant
of the decision several months earlier not to convert complainant to a
permanent appointment as the Supervisory Air Traffic Control Specialist.
The agency notes that the AJ rejected the same comment as proof of pretext
in connection with complainant's claim of age discrimination relative
to the failure to convert complainant to the supervisory GS-13 position.
The agency argues that the rejection of the comment in one instance when
it was made contemporaneous with an agency decision and its acceptance
in another agency decision made seven months later is inconsistent.
The agency also argues that the phrase "new blood" is not the same as
the phrase "young blood." Thus, the agency argues that the "new blood"
comment did not show age discrimination since its connotation was a new
employee who might or might not be younger than complainant.
Second, the agency claims the AJ imposed an overly harsh sanction
against it. The agency states the AJ failed to take into account the
agency's overall conduct during the discovery phase. The agency notes
it initially provided 902 pages of documents in discovery. The agency
notes that the agency representative was on leave until July 26, 2005,
and that was the date that he received the AJ's Order. The agency
notes the agency representative answered the discovery by express mail
on August 5, 2005, which is nine days after he received the AJ's Order.
The agency notes it made timely responses to other discovery requests
and avoided engaging in dilatory practices. The agency argues that
its initial inaction relative to the Request for Admissions did not
rise to the level of contumacious conduct. Additionally, the agency
claims the AJ failed to take into account that complainant's claim of
retaliation was not hindered to such a degree that an adverse finding
of the kind imposed was justified. The agency claims that the personnel
specialist who prepared the referral list for the selecting official had
no idea of complainant's prior EEO activity. The agency states that
the personnel specialist did not conspire with the selecting official
to remove him from that list. Moreover, the agency argues there is no
evidence in the record that Lieutenant Colonel B, the Selecting Official
(SO), tried to influence the selection process for the GS-11 position.
Rather, the agency notes that SO testified that he had nothing to do with
the persons at the Air Force Personnel Center who compiled the referral
list. The agency also claims there was no causal connection between
the administrative oversight and complainant's prior protected activity.
Finally, the agency states the AJ correctly found complainant was not
entitled to compensatory damages or attorney's fees for age discrimination
or reprisal as a result of the finding of discrimination for the GS-11
position.
Complainant also filed an appeal from the AJ's decision. On appeal
complainant states that he agrees with the AJ's decision that he was
discriminated against based on age and reprisal. However, complainant
states that the retaliation did not occur because of age discrimination.
Complainant states that the retaliation occurred due to his prior EEO
activity concerning his non-selection for the GS-2152-13 Supervisory Air
Traffic Control Specialist position. Complainant claims his claim of
reprisal falls under Title VII and he requests compensatory damages and
attorney's fees be awarded to him. Additionally, complainant challenges
the AJ's decision not to order training to the RMO. Complainant states
that in testimony, Lieutenant Colonel B took full responsibility for
the action taken against her and she requests that he be disciplined
for his action.
ANALYSIS AND FINDINGS
The Commission notes that in this case the testimony of six witnesses
at this hearing was taken by telephone, without the objection of the
parties.2 The Commission has held that testimony may not be taken by
telephone in the absence of exigent circumstances, unless at the joint
request of the parties and provided specified conditions have been met.
See Louthen v. United States Postal Service, EEOC Appeal No. 01A44521
(May 17, 2006).3 However, since the facts of this case pre-date Louthen,
we will assess the propriety of conducting the hearing telephonically
by considering the totality of the circumstances. Here, it is unclear
whether exigent circumstances existed. On the other hand, it is clear
that there were no issues of witness credibility that might have been
impacted by the taking of testimony telephonically.4 Under these
circumstances, even if it is assumed that the AJ abused his discretion
in this case by taking testimony telephonically, the Commission finds
that his action constituted harmless error.
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, � VI.B. (November 9, 1999).
The record reveals that during the discovery phase of the proceeding, the
AJ issued sanctions against the agency for failure to timely respond to
complainant's request for admissions. Specifically, the record shows that
on May 2, 2005, complainant served COMPLAINANT'S FIRST REQUESTS TO THE
AGENCY FOR ADMISSIONS. The agency served a response to the complainant's
request for admissions which complainant received on June 16, 2005.
On June 27, 2005, complainant filed COMPLAINANT'S MOTION FOR SANCTIONS
AGAINST OR TO COMPEL DISCOVERY FROM THE AGENCY FOR ITS FAILURE TO
RESPOND TO COMPLAINANT'S REQUESTS FOR ADMISSIONS. The agency objected to
complainant's Motion to Compel/Motion for Sanctions. Thereafter, on July
11, 2005, the AJ issued an ORDER ON COMPLAINANT'S MOTION FOR SANCTIONS
AGAINST THE AGENCY FOR FAILURE TO RESPOND TO COMPLAINANT'S REQUEST FOR
ADMISSIONS and ordered the agency to respond to complainant's request for
admissions as either admitted or denied within 15 calendar days of receipt
of his Order. The Order noted "[f]or timeliness purposes, it shall be
presumed that the parties received the foregoing ORDER within five (5)
calendar days after the date it was sent via first class mail."
On August 8, 2005, complainant filed COMPLAINANT'S MOTION FOR SANCTIONS
AGAINST THE AGENCY FOR ITS FAILURE TO COMPLY WITH THE EEOC'S JULY 11TH
ORDERS TO COMPEL DISCOVERY. In this Motion, complainant claimed that the
AJ's July 11th Order gave the agency until August 1, 2005, to respond
more completely to discovery and complainant stated that the agency
failed to do this. On August 10, 2005, the agency filed its AGENCY
OPPOSITION TO COMPLAINANT'S MOTION FOR SANCTIONS AGAINS THE AGENCY AND
MOTION TO STAY DEADLINES, in which the agency states at the time it
received the AJ's July 11, 2005 Order, the agency representative was on
leave and did not return until July 26, 2005. The agency claimed that it
mailed its response to complainant on August 8, 2005, within 15 days of
receipt of the Order by the agency representative. On August 15, 2005,
complainant submitted COMPLAINANT'S REPLY TO THE AGENCY'S OPPOSITION
in which complainant noted that based on the five-day presumption
on the certificate of service attached to the AJ's July 11th Order,
the agency is presumed to have received the Order on July 16, 2005.
Complainant noted that the deadline for responding to the AJ's Order
ended on Sunday, July 31, 2005, and therefore automatically extended to
Monday, August 1, 2005. Complainant supplied a copy of a USPS Express
Mail Label showing the agency did not mail their response until August
8, 2005. Thereafter, in a THIRD AMENDED PREHEARING MEMORANDUM ORDER,
the AJ found that based on the agency's failure to timely respond to
the complainant's request for admissions, the requests for admissions
are "deemed admitted." Based on a review of the record, including the
agency's statement on appeal, we find the AJ was within his discretion
to sanction the agency for failure to timely comply with his July 11,
2005 Order. Specifically, the agency failed to present good cause for
failure to timely respond to the AJ's Order.
We note that on appeal, complainant does not challenge the AJ's finding
of no discrimination with regard to the agency's failure to convert him
to a GS-13 at the expiration of his temporary appointment, the failure
to select him for a GS-13 Supervisory position, and the harassment claim
and we hereby AFFIRM those determinations herein.
Upon review, we find substantial evidence supports the AJ's finding of
discrimination with regard to the non-referral of complainant for the
GS-11 non-supervisory position. The record discloses, and the agency
does not dispute, that complainant established a prima facie case of age
discrimination with regard to the GS-11 position. Specifically, we note
complainant was fifty years of age at the time he applied for the GS-11
position, the selectee was thirty-nine years of age, and complainant
was qualified but not referred for consideration for the position.
Similarly, with regard to his claim of retaliation, we find complainant
presented a prima facie case of retaliation, based on the fact that as
a result of a sanction the agency is deemed to have admitted that it
was aware of complainant's EEO activity prior to its decision not to
refer him for the GS-11 position. Complainant's prior EEO activity was
his complaint surrounding the expiration of his temporary appointment
on May 31, 2003, which he claims was a result of age discrimination.
Clearly, complainant was adversely affected by the agency's non-referral
of him for the GS-11 position. Based on the short period of time between
complainant's complaint surrounding the May 31, 2003 expiration of his
temporary appointment and the timing of the December 2003 selection for
the GS-11 position, we find that a retaliatory inference arises.
After finding that complainant established a prima facie case of
discrimination based on age and retaliation, we next examine the
reason presented by the agency for its actions. The agency states
that due to an "administrative oversight" complainant was not granted
an age waiver and as a result was not referred for consideration for
the GS-11 position. At the hearing, testimony revealed that Staffing
Specialist X of the Air Force Personnel Center at the Randolph Base in
Texas was listed on the vacancy announcement as processing complainant's
paperwork for the GS-11 position. At the time of the hearing, Staffing
Specialist X was no longer working at the Air Force Personnel Center.
As Staffing Specialist X was not available to testify and based on the
belief by agency personnel that complainant's non-referral for the GS-11
was not intentional, the agency characterized the non-referral as an
"administrative oversight." While we find that the agency presented
a reason for complainant's non-referral, we note there is no evidence
provided that the action by Staffing Specialist X was the result of an
oversight or a mistake. Nevertheless, assuming that the agency presented
a legitimate, non-discriminatory reason for its action, we will examine
whether complainant presented evidence of pretext.
Based upon a review of the record, we find that substantial evidence
supports the AJ's finding that the use of the phrase "new blood," the lack
of evidence showing complainant's non-referral was an "administrative
oversight," and the hiring of someone under forty years of age support
pretext for discrimination in the present case.
Finally, we find the AJ correctly determined that complainant is
not entitled to compensatory damages or attorney's fees since he
raised age discrimination and age related retaliation as his bases.
Although complainant claims that his retaliation claim falls under Title
VII, it is clear that he is claiming retaliation for his challenging
his non-selection for the GS-2152-13 Supervisory Air Traffic Control
Specialist position, which he claimed was a result of age discrimination.
CONCLUSION
Accordingly, the agency's final order is AFFIRMED in part, REVERSED in
part and the matter is REMANDED to the agency for further processing in
accordance with the Order herein.
ORDER
The agency is ordered to take the following actions:
1. Within 30 days of the date this decision becomes final the agency
shall notify all employees of the agency in the affected facility of
their right to be free of unlawful discrimination and assurance that
age and retaliation discrimination will not recur;
2. Within 30 days of the date this decision becomes final the agency shall
commit that corrective, curative, or preventive action will be taken,
or measures adopted, to ensure that violations of the law similar to
those found will not recur;
3. Within 60 days of the date this decision becomes final the agency
shall give an unconditional written offer to complainant of placement in
the position of Non-Supervisory Air Traffic Control Specialist (Terminal)
or a substantially equivalent position. Complainant shall have 15 days
from receipt of the offer within which to accept or decline the offer.
Failure to accept the offer within the 15-day period will be considered a
declination of the offer, unless complainant can show that circumstances
beyond his control prevented a response within the time limit. If the
offer is accepted, appointment shall be retroactive to the date the
applicant would have been hired (December 1, 2003);
4. Within 90 days of the date this decision becomes final the agency
shall make payment to complainant on a make whole basis for any loss
of earnings he may have suffered as a result of the discrimination.
Back pay, computed in the manner prescribed by 5 C.F.R. � 550.805,
shall be awarded from the date complainant would have entered on duty,
from December 1, 2003, until this decision is enforced. Interest on
back pay shall be included in the back pay computation where sovereign
immunity has been waived. If the offer of employment is declined, the
agency shall award complainant a lump sum equal to back pay he would
have received, computed in the manner prescribed by 5 C.F.R. � 550.805,
from the date he would have been appointed, December 1, 2003, until the
date the offer was declined. In no case shall back pay extend from a
date earlier than two years prior to the date on which the complaint
was initially filed by complainant.
5. Within 30 days of the date this decision becomes final the agency
shall make the commitment to cease from engaging in age discrimination
and retaliation;
6. The agency shall not engage in retaliatory acts pursuant to this
complaint.
7. Within 90 days of the date this decision becomes final the agency
shall provide all other entitlements commensurate with the position.
POSTING ORDER (G0900)
The agency is ordered to post at its North Carolina Air National Guard
facility copies of the attached notice. Copies of the notice, after
being signed by the agency's duly authorized representative, shall
be posted by the agency within thirty (30) calendar days of the date
this decision becomes final, and shall remain posted for sixty (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 ten (10)
calendar days of the expiration of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
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 (M0701)
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), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed 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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 5, 2007
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
2 The mere lack of an objection is not dispositive, however. See Louthen
v. United States Postal Serv., EEOC Appeal No. 01A44521 (May 17, 2006).
3 "In Louthen, the Commission has promulgated its policy regarding the
taking of telephonic testimony in the future by setting forth explicit
standards and obligations on its Administrative Judges and the parties.
Louthen requires either a finding of exigent circumstances or a joint
and voluntary request by the parties with their informed consent. When
assessing prior instances of telephonic testimony, the Commission will
determine whether an abuse of discretion has occurred by considering
the totality of the circumstances. In particular, the Commission will
consider factors such as whether there were exigent circumstances,
whether a party objected to the taking of telephonic testimony, whether
the credibility of any witnesses testifying telephonically is at issue,
and the importance of the testimony given telephonically. Further, where
telephonic testimony was improperly taken, the Commission will scrutinize
the evidence of record to determine whether the error was harmless,
as is found in this case." Sotomayor v. Department of the Army, EEOC
Appeal No. 01A43440 (May 17, 2006).
4 We note that the AJ did make a credibility determination regarding
the testimony of Lieutenant Colonel A; however, his testimony was not
taken via telephone.
??
??
??
??
2
0720060064
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036