Renee Palmer, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 7, 1999
01976377_r (E.E.O.C. May. 7, 1999)

01976377_r

05-07-1999

Renee Palmer, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Renee Palmer, )

Appellant, )

)

v. ) Appeal No. 01976377

) 01984495

William J. Henderson, ) Agency No. 4-C-190-0172-97

Postmaster General, ) 4-C-190-0226-97

United States Postal Service, )

Agency. )

______________________________)

DECISION

On June 5, 1997, appellant filed a formal complaint, Agency Number

4-C-190-0172-97, alleging that she was subjected to discrimination in

violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. �2000e et seq. and �501 of the Rehabilitation Act of 1973, as

amended, 29 U.S.C. �791 et seq. on the bases of race (African-American),

sex (female), and mental disability (perceived emotional instability)

when:

On or about June 26, 1995, appellant's supervisor grabbed appellant in

a sexual manner;

On or about January 23, 1997, appellant's supervisor inappropriately

touched appellant and commented on appellant's appearance;

On or about January 23, 1997, appellant's supervisor �brushed� against

appellant;

On or about February 3, 1997, after incurring an on the job injury,

appellant's supervisor questioned whether appellant sustained an injury

or just needed more iron in her blood;

On or about February 4, 1997, appellant's supervisor required appellant

to submit a second accident report for the on-the-job injury mentioned

in allegation (4);

On or about March 10, 1997, appellant's supervisor told appellant she

was not working fast enough and, despite appellant's injury, assigned

appellant to pull mail;

On or about March 12, 1997, appellant's supervisor assigned appellant

to work in a more secluded area and began to tell appellant about her

life and problems;

On or about March 17, 1997, appellant's Supervisor said appellant was

not moving fast enough and generally complained about appellant; and

On March 22, 1997, appellant's supervisor punched appellant off the

clock and sent appellant home, and subsequently, on March 24, 1997,

appellant was verbally told by the Postmaster that she was placed on

emergency placement in an off-duty status.

In a final agency decision (FAD) dated August 13, 1997 (FAD-1), the

agency accepted allegation (8), dismissed allegations (1)-(7) pursuant

to EEOC Regulation 29 C.F.R. �1614.107(b), for untimely counselor

contact, and dismissed allegation (9) pursuant to EEOC Regulation 29

C.F.R. �1614.107(a) for stating the same claim pending in Agency Number

4-C-190-0156-97.

Appellant timely appealed FAD-1 on August 19, 1997. On appeal, appellant

argues, through her representative, that her complaint comprises a

continuing violation of sexual harassment and hostile work environment

allegations. Alternatively, appellant argues that she failed to file

a complaint earlier because of fear of reprisal from her supervisor.

Appellant notes that the agency failed to address two of her allegations,

i.e., that on March 12, 1997, appellant's supervisor asked appellant

to sign a late slip, but appellant refused because her supervisor had

promised to give her the opportunity to make-up her time, and that on

March 22, 1997, appellant's supervisor gave appellant sick leave slips

to sign, despite assurances from the Postmaster that appellant would

receive administrative leave for the time she spent at her doctor.

On March 27, 1998, the agency issued a second FAD on Agency Number

4-C-190-0172-97 (FAD-2), although the appeal of FAD-1 was pending.

In FAD-2, the agency dismissed allegation (8), which had been accepted in

FAD-1, pursuant to EEOC Regulation 29 C.F.R. �1614.107(a), for failure

to state a claim. The agency found that appellant was not aggrieved

because allegation (8) involved a remark unaccompanied by concrete harm.

Appellant's subsequent appeal of FAD-2 was postmarked April 24, 1998,

and therefore also is accepted as timely. On appeal, appellant urges

that her appeal of FAD-2 be consolidated with her earlier appeal

of FAD-1, because both FADs involve issues from the same complaint.

Appellant argues that allegation (8) is only one of a series of incidents

in a continuing violation. Appellant also contends that allegation (8)

should be viewed under the �totality of the circumstances� of her other

allegations from Agency Number 4-C-190-0172-97, and would state a claim

under such an analysis.

A review of the record for Agency Number 4-C-190-0172-97 reveals that

appellant raised the issues of being given late slips on March 12,

1997, and being given leave slips on March 22, 1997, in her June 5,

1997 formal complaint. The record also contains a notice of processing

for Agency Number 4-C-190-0156-97, dated August 8, 1997, accepting the

following allegation for investigation: appellant was discriminated

against on the bases of race (African-American), sex (female), and

mental disability (perceived) when on March 22, 1997, appellant's

supervisor punched appellant off the clock and sent appellant home;

and subsequently, on March 24, 1997, appellant was verbally told that

she was placed on emergency placement in an off-duty status.

Meanwhile, on February 24, 1998, appellant filed a separate formal

complaint, Agency Number 4-C-190-0226-97, alleging that she was subjected

to discrimination in violation of Title VII of the Civil Rights Act of

1964, as amended, 42 U.S.C. �2000e et seq. and �501 of the Rehabilitation

Act of 1973, as amended, 29 U.S.C. �791 et seq. on the bases of race

(African-American), religion (unspecified), sex (female), and mental

disability (perceived emotional instability) when:

On May 12, 1997, appellant received a Notice of Removal, effective June

11, 1997, for Misconduct in violation of the Code of Ethical Conduct,

exhibiting threatening behavior, and failure to follow instructions.

Although subsequently appellant was returned to work by an arbitrator's

decision, appellant feels that her grievance did not adjudicate any

issues of discrimination or address compensatory damages;

On or about June 26, 1995, appellant's supervisor grabbed appellant in

a sexual manner. On or about January 3, 1997, appellant's supervisor

inappropriately touched appellant and commented on appellant's appearance.

On or about January 30, 1997, appellant's supervisor �brushed� against

appellant. On or about February 3, 1997, after incurring an on the job

injury, appellant's supervisor questioned whether appellant sustained

an injury or just needed more iron in her blood. On or about February

4, 1997, appellant's supervisor required appellant to submit a second

accident report for the on-the-job injury previously mentioned. On or

about March 10, 1997, appellant's supervisor told appellant she was not

working fast enough and, despite appellant's injury, assigned appellant to

pull mail. On or about March 12, 1997, appellant's supervisor assigned

appellant to work in a more secluded area and began to tell appellant

about her life and problems. On or about March 17, 1997, appellant's

Supervisor said appellant was not moving fast enough and generally

complained about appellant; and on March 22, 1997, appellant's supervisor

punched appellant off the clock and sent appellant home, and subsequently,

on March 24, 1997, appellant was verbally told by the Postmaster that

she was placed on emergency placement in an off-duty status.

On March 22, 1997, appellant's supervisor punched appellant off the

clock and sent appellant home, and subsequently, on March 24, 1997,

appellant was verbally told that she was placed on emergency placement

in an off-duty status.

On April 21, 1998, the agency issued a FAD for Agency Number

4-C-190-0226-97 (FAD-3), dismissing allegation (a) pursuant to EEOC

Regulation 29 C.F.R. �1614.107(a), for failure to state a claim, finding

that appellant was merely voicing her dissatisfaction with the outcome

of her grievance, which is not within the purview of the EEO process.

The agency also dismissed allegations (b) and (c) pursuant to the

same regulation, for stating the same claim pending in Agency Numbers

4-C-190-0172-97 and 4-C-190-0156-97.

Appellant timely appealed FAD-3 on May 20, 1998. Appellant urged

that FAD-3 also be consolidated with her appeals of FAD-1 and FAD-2.

Appellant argues that all three FAD's involve the same pattern of sexual

and hostile work environment harassment. Further, appellant notes that

she listed religion as a basis for Agency Number 4-C-190-0226-97 in error,

and that she instead meant to allege reprisal for her prior EEO activity.

Regarding allegation (a), appellant denies that she is attempting to

collaterally attack the agency's grievance decision. Appellant notes that

the grievance involved whether the agency's notice of removal was issued

with just cause, but that the grievance did not address discrimination.

The record of Agency Number 4-C-190-0226-97 includes a grievance

arbitrator's decision regarding the May 12, 1997 notice of proposed

removal. The decision sustained appellant's grievance, and ordered

compensation for the time appellant lost from work. Appellant requested

additional compensatory damages in her February 24, 1998 formal complaint.

The Commission notes appellant's request to consolidate the appeals of

Agency Numbers 4-C-190-0172-97 and 4-C-190-0226-97. EEOC Regulation 29

C.F.R. �1614.606 allows the Commission, in its discretion, to consolidate

two or more complaints of discrimination from the same complainant.

Consequently, the Commission agrees to consolidate appellant's appeals

for decision herein.

AGENCY NUMBER 4-C-190-0172-97

EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of

discrimination should be brought to the attention of the Equal Employment

Opportunity Counselor within forty-five (45) days of the date of the

matter alleged to be discriminatory or, in the case of a personnel

action, within forty-five (45) days of the effective date of the action.

The Commission has adopted a "reasonable suspicion" standard (as opposed

to a "supportive facts" standard) to determine when the forty-five (45)

day limitation period is triggered. See Ball v. USPS, EEOC Request

No. 05880247 (July 6, 1988). Thus, the time limitation can be triggered

before all the facts that support a charge of discrimination have become

apparent, but not until a complainant reasonably suspects discrimination.

EEOC Regulations provide that the agency or the Commission shall extend

the time limits when the individual shows that she was not notified of the

time limits and was not otherwise aware of them, that she did not know

and reasonably should not have known that the discriminatory matter or

personnel action occurred, that despite due diligence she was prevented

by circumstances beyond her control from contacting the Counselor within

the time limits, or for other reasons considered sufficient by the agency

or the Commission.

The Commission has held that the time requirements for initiating EEO

counseling could be waived as to certain allegations within a complaint

when the complainant alleged a continuing violation; that is, a series

of related discriminatory acts, one of which fell within the time period

for contacting an EEO Counselor. See McGivern v. U.S. Postal Service,

EEOC Request No. 05901150 (December 28, 1990).

A determination of whether a series of discrete acts constitutes

a continuing violation depends on the interrelatedness of the past

and present acts. Berry v. Board of Supervisors, 715 F.2d 971, 981

(5th Cir. 1983), cert. denied, 479 U.S. 868 (1986). It is necessary to

determine whether the acts are interrelated by a common nexus or theme.

See Vissing v. Nuclear Regulatory Commission, EEOC Request No. 05890308

(June 13, 1989); Verkennes v. Department of Defense, EEOC Request

No. 05900700 (September 21, 1990); Maldonado v. Department of the

Interior, EEOC Request No. 05900937 (October 31, 1990). Should such

a nexus exist, appellant will have established a continuing violation

and the agency would be obligated to "overlook the untimeliness of the

complaint with respect to some of the acts" challenged by appellant.

Scott v. Claytor, 469 F. Supp. 22, 26 (D.D.C. 1978).

Relevant to the determination are whether the acts were recurring or were

more in the nature of isolated employment decisions; whether an untimely

discrete act had the degree of permanence which should have triggered an

employee's awareness and duty to assert his or her rights; and whether the

same agency officials were involved. Woljan v. Environmental Protection

Agency, EEOC Request No. 05950361 (October 5, 1995).

Further, it is important, in determining whether a claim for a continuing

violation is stated, to consider whether an appellant had prior knowledge

or suspicion of discrimination and the effect of this knowledge.

Jackson v. Department of the Air Force, EEOC Request No. 05950780 (June

27, 1997); see Sabree v. United Brotherhood of Carpenters and Joiners

Local No. 33, 921 F.2d 396 (1st Cir. 1990) (plaintiff who believed he

had been subjected to discrimination had an obligation to file promptly

with the EEOC or lose his claim, as distinguished from the situation

where a plaintiff is unable to appreciate that he is being discriminated

against until he has lived through a series of acts and is thereby able

to perceive an overall discriminatory pattern).

Although the agency failed to address appellant's allegations as a

continuing violation, the Commission finds enough evidence on record

with which to render a decision on the issue. The Commission finds that

allegation (1) was properly dismissed. The incident occurred in 1995,

two years before appellant's counselor contact, and is not rendered

timely by the continuing violation theory. One element necessary to

establish a continuing violation is a frequency or recurrence of events.

Allegation (1), however, occurred approximately one and a half years

before any other allegation raised by appellant. Additionally, although

appellant argued that her delay in contacting an EEO Counselor was due

to her fear of retaliation, the Commission has previously held that fear

of retaliation is an insufficient justification for extending the time

limitation for contacting an EEO Counselor. See Simeone v. Department

of the Navy, EEOC Request No. 05930973 (January 25, 1994). Accordingly,

the agency's dismissal of allegation (1) is AFFIRMED.

Allegations (2), (3), (4), (5), (6), (7), and (8) however, involve

seven incidents of harassment by the same agency official, occurring

over a two and a half month period. Allegation (8) was timely raised,

and the other allegations are recurring acts that are interrelated by a

common nexus. Accordingly, allegations (2), (3), (4), (5), (6), and (7)

are part of a continuing violation and, therefore, are considered timely.

EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that

an agency shall dismiss a complaint, or portion thereof, that fails to

state a claim. An agency shall accept a complaint from any aggrieved

employee or applicant for employment who believes that he or she has been

discriminated against by that agency because of race, color, religion,

sex, national origin, age or disabling condition. 29 C.F.R. �1614.103;

�1614.106(a). The Commission's federal sector case precedent has long

defined an "aggrieved employee" as one who suffers a present harm or loss

with respect to a term, condition, or privilege of employment for which

there is a remedy. Diaz v. Department of the Air Force, EEOC Request

No. 05931049 (April 21, 1994).

In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme

Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477

U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently

severe or pervasive to alter the conditions of the complainant's

employment. The Court explained that an "objectively hostile or abusive

work environment" is created when "a reasonable person would find

[it] hostile or abusive: and the complainant subjectively perceives it

as such. Harris, supra at 21-22. Thus, not all claims of harassment

are actionable. Where a complaint does not challenge an agency action or

inaction regarding a specific term, condition or privilege of employment,

a claim of harassment is actionable only if, allegedly, the harassment

to which the complainant has been subjected was sufficiently severe or

pervasive to alter the conditions of the complainant's employment.

A complaint should not be dismissed for failure to state a claim unless

it appears beyond doubt that the complainant cannot prove a set of facts

in support of the claim which would entitle the complainant to relief.

The trier of fact must consider all of the alleged harassing incidents

and remarks, and considering them together in the light most favorable to

the complainant, determine whether they are sufficient to state a claim.

Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March

13, 1997).

Allegation (8) must be considered in light of all the other incidents of

alleged harassment raised in Agency Number 4-C-190-0172-97. See Cobb

v. Department of the Treasury, EEOC Request No. 05970077 (March 13,

1997). When considered with allegations (2), (3), (4), (5), (6), and

(7), the Commission finds that appellant's complaint of eight incidents

of harassment by the same agency official over a three month period

clearly is severe and pervasive enough to state a claim. Further,

the agency improperly treated matters raised in appellant's complaint

in a piecemeal manner. See Meaney v. Department of the Treasury, EEOC

Request No. 05940169 (November 3, 1994) (an agency should not ignore the

"pattern aspect" of a complainant's allegations and define the issues in

a piecemeal manner where an analogous theme unites the matter complained

of). Therefore, the agency's decision that allegation (8) fails to state

a claim is REVERSED.

EEOC Regulation 29 C.F.R. �1614.107(a) provides that the agency shall

dismiss a complaint or a portion of a complaint that states the same

claim that is pending before or has been decided by the agency or

Commission. The Commission finds that allegation (9) of Agency Number

4-C-190-0172-97 states the same claim pending with the agency in Agency

Number 4-C-190-0156-97. Accordingly, the agency's decision to dismiss

allegation (9) is AFFIRMED.

The Commission notes that the agency failed to address appellant's

allegations concerning being given late slips on March 12, 1997, and

being given sick leave slips on March 22, 1997. The Commission deems

the agency's action to be tantamount to a dismissal of that matter.

Appellant's submissions on appeal reveal that appellant referenced the

matter in her formal complaint. Accordingly, the agency's dismissal of

appellant's allegations concerning being given late slips on March 12,

1997, and being given sick leave slips on March 22, 1997 is REVERSED, and

these allegations also are REMANDED to the agency for further processing.

AGENCY NUMBER 4-C-190-0226-97

The Commission has held that a complainant may allege discrimination

on all applicable bases, including sex, race, national origin, color,

religion, age, disability and reprisal, and may amend his or her complaint

at any time, including at the hearing, to add or delete bases without

changing the identity of the claim. See Sanchez v. Standard Brands,

Inc., 431 F.2d 455 (5th Cir. 1970); Dragos v. United States Postal

Service, EEOC Request No. 05940563 (January 19, 1995). Accordingly,

appellant's complaint should be amended to delete the basis of religion,

and to add the basis of reprisal for prior EEO activity.

As mentioned above, EEOC Regulation 29 C.F.R. �1614.107(a) provides

that the agency shall dismiss a complaint or a portion of a complaint

that states the same claim that is pending before or has been decided

by the agency or Commission. The Commission finds that allegations (b)

and (c) from appellant's complaint clearly state the same claim pending

before the Commission in Agency Numbers 4-C-190-0172-97, and Agency

Number 4-C-190-0156-97. Accordingly, the agency's decision to dismiss

allegations (b) and (c) is AFFIRMED.

In allegation (a), appellant alleged that she was subjected to

discrimination when she received a Notice of Removal. While the agency

dismissed allegation (a) on the grounds of failure to state a claim,

clearly this was improper; appellant was aggrieved when she received

the Notice of Removal. The agency noted that appellant challenged the

Notice of Removal through the grievance process. Therefore, we find that

allegation (a) is more properly analyzed to determine whether it is moot.

EEOC Regulation 29 C.F.R. �1614.107(e) provides for the dismissal of a

complaint, or portions thereof, when the issues raised therein are moot.

To determine whether the issues raised in appellant's complaint are moot,

it must be ascertained (1) if it can be said with assurance that there

is no reasonable expectation that the alleged violation will recur, and

(2) if the interim relief or events have completely and irrevocably

eradicated the effects of the alleged violation. See County of Los

Angeles v. Davis, 440 U.S. 625 (1979). When such circumstances exist,

no relief is available and no need for a determination of the rights of

the parties is presented.

Appellant filed a grievance on her proposed removal, which resulted in

the rescission of the Notice of Removal and compensation of appellant

for time lost. However, appellant requested compensatory damages in

her formal complaint, in addition to the compensation she received from

the grievance. The agency failed to address this issue.

The Commission has held that an agency must address the issue of

compensatory damages when a complainant shows objective evidence

that she has incurred compensatory damages, and that the damages are

related to the alleged discrimination. Jackson v. USPS, EEOC Appeal

No. 01923399 (November 12, 1992), request to reopen denied, EEOC

Request No. 05930306 (February 1, 1993). Should appellant prevail

on this complaint, the possibility of an award of compensatory damages

exists. See Glover v. USPS, EEOC Appeal No. 01930696 (December 9, 1993).

Because appellant requested compensatory damages, the agency should have

requested that appellant provide some objective proof of the alleged

damages incurred, as well as objective evidence linking those damages

to the adverse actions at issue. See Benton v. Department of Defense,

EEOC Appeal No. 01932422 (December 10, 1993). Accordingly, allegation

(a) is not moot, and the agency's decision to dismiss allegation (a)

is REVERSED.

CONCLUSION

Accordingly, the agency's dismissal of allegations (1) and (9) of Agency

Number 4-C-190-0172-97, and allegations (b) and (c) of Agency Number

4-C-190-0226-97 is AFFIRMED. The agency's decision to dismiss allegations

(2), (3), (4), (5), (6), (7), and (8) of Agency Number 4-C-190-0172-97,

and allegation (a) of Agency Number 4-C-190-0226-97 are REVERSED, and

these allegations, including the basis of reprisal, are REMANDED for

further processing.

ORDER (E1092)

The agency is ORDERED to process the remanded allegations in accordance

with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant

that it has received the remanded allegations within thirty (30) calendar

days of the date this decision becomes final. The agency shall issue to

appellant a copy of the investigative file and also shall notify appellant

of the appropriate rights within one hundred fifty (150) calendar days

of the date this decision becomes final, unless the matter is otherwise

resolved prior to that time. If the appellant requests a final decision

without a hearing, the agency shall issue a final decision within sixty

(60) days of receipt of appellant's request.

A copy of the agency's letter of acknowledgment to appellant and a copy

of the notice that transmits the investigative file and notice of rights

must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action.

The report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the appellant. If the agency does not comply with the Commission's

order, the appellant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503(a). The appellant also has the right

to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. ��1614.408, 1614.409, and 1614.503(g). Alternatively,

the appellant has the right to file a civil action on the underlying

complaint in accordance with the paragraph below entitled "Right to File

A Civil Action." 29 C.F.R. ��1614.408 and 1614.409. A civil action for

enforcement or a civil action on the underlying complaint is subject to

the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the

appellant files a civil action, the administrative processing of the

complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. �1614.410.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and be submitted to the Director, Office of

Federal Operations, Equal Employment Opportunity Commission, P.O. Box

19848, Washington, D.C. 20036. In the absence of a legible postmark,

the request to reconsider shall be deemed filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and any supporting documentation must be submitted with your

request for reconsideration. The Commission will consider requests

for reconsideration filed after the deadline only in very limited

circumstances. See 29 C.F.R. �1614.604(c).

RIGHT TO FILE A CIVIL ACTION (T0993)

This decision affirms the agency's final decision 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 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.

It is the position of the Commission that you have the right to file

a civil action in an appropriate United States District Court WITHIN

NINETY (90) CALENDAR DAYS from the date that you receive this decision.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. In the alternative, you may file a

civil action AFTER ONE HUNDRED 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. 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 (Z1092)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court appoint

an attorney to represent you and that the Court permit you to file the

action without payment of fees, costs, or other security. See Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. ��791, 794(c).

The grant or denial of the request is within the sole discretion of

the Court. Filing a request for an attorney does not extend your time

in which to file a civil action. Both the request and the civil action

must be filed within the time limits as stated in the paragraph above

("Right to File A Civil Action").

FOR THE COMMISSION:

May 7, 1999

____________________________

DATE Ronnie Blumenthal, Director

Office of Federal Operations