0120093506
07-27-2012
Sharon Camden, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.
Sharon Camden,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Investigation),
Agency.
Appeal No. 0120093506
Hearing No. 510-2008-00395X
Agency No. F-07-6344
DECISION
Complainant timely filed an appeal from the Agency's July 16, 2009, final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are whether the EEOC Administrative Judge (AJ) properly issued a decision without a hearing, and whether the AJ properly found that Complainant failed to prove that she was subjected to discrimination based on sex and reprisal.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Special Agent at the Agency's Jacksonville, Florida, office. Complainant had begun her employment with the Agency in September 1996.
In April 2004, Complainant entered into the Part-Time Agent Program (PTAP) after the birth of her first child. The Agency implemented PTAP in 1996 as a program designed to retain Special Agents who otherwise would have resigned due to personal and hardship circumstances. In essence, the PTAP permitted Special Agents "a period of time to alter the pace of their career, while maintaining the ability to remain active in their investigative responsibilities." Report of Investigation (ROI), Tab 49. Special Agents could enter the program for up to 10 years, depending on the needs of the office.
Under the PTAP, Complainant worked two consecutive ten-hour days per week at the Agency's Jacksonville office. During her part-time work week, Complainant lived in an apartment for which she received compensation from the Agency. On her days off, Complainant lived in Pompano Beach, Florida, where she resided with her husband and child. Complainant was the only Special Agent in the PTAP in Jacksonville. On November 9, 2006, Complainant gave birth to her second child.
In early 2007, the Jacksonville office underwent an inspection audit, which uncovered deficiencies in the office's domestic terrorism squad. The Special-Agency-in-Charge (SAC) determined that the Jacksonville office's terrorism squad was not sufficiently staffed and needed to reallocate personnel in order to rectify program deficiencies. Consequently, in March 2007, the SAC informed Complainant of her removal from the PTAP and return to her to full-time status. Complainant received ten weeks unpaid leave to allow her to transition to full-time status, but after the 10-week period ended in May 2007, Complainant applied for and received an additional 12 weeks of leave under the Family and Medical Leave Act (FMLA). Complainant was expected to return to work in August 2007, but Complainant requested an additional 14 weeks of leave without pay (LWOP). The SAC denied Complainant any additional time off. On August 6, 2007, Complainant informed the Agency that she would resign in two weeks, but Complainant rescinded her resignation on August 27, 2007. When Complainant returned to work in late August 2007, her supervisor (S1) assigned her "basic leads." Complainant subsequently resigned, effective December 7, 2007.
On July 26, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of sex (female) and in reprisal for prior EEO activity when:
1. On or about March 2, 2007, the Agency removed Complainant from the PTAP;
2. On or about August 3, 2007 and September 24, 2007, the Agency denied Complainant's request for LWOP;
3. On or about August 6, 2007, and continuing, the Agency ostracized Complainant and did not give her certain assignments until the final decision regarding her full-time employment status was made in September 2007; and
4. On or about August 28, 2007, during a meeting with the SAC and S1 regarding her rescinded letter of resignation, the Agency asked awkward and extensive questions regarding her breastfeeding methods.
In an investigative statement, Complainant stated that while she was on maternity leave on February 12, 2007, S1 called and informed her that management had determined that 18 temporary duty (TDY) assignments to Agency Headquarters and the rotational transfer program were negatively impacting the Jacksonville office. It was suggested that Complainant should return to full-time duty at the end of her maternity leave. Complainant stated that she discussed the matter with the SAC on March 2, 2007, and the SAC was resolute that she must return to full-duty status within 60 days.
Complainant further stated that in mid-May 2007, she submitted documentation in support of her FMLA request. She stated that the Agency granted her 12 weeks of FMLA leave, which provided her with unpaid leave to care for her newborn child. Complainant further stated that she requested an additional 14 weeks of LWOP on July 24, 2007, to address breastfeeding concerns, but the Agency denied the request on August 3, 2007. Complainant stated that she returned to work on August 6, 2007, because she felt she had no choice. Complainant stated that on August 7, 2007, she informed S1 that she would resign. Complainant stated that after she announced her resignation, her colleagues kept their distance from her, would not ask her to assist them with important tasks, and asked her to perform less desirable duties. Complainant also stated that she initially was not included in an office-wide search warrant assignment after she announced her resignation. She stated that she rescinded that resignation after a meeting with S1 and the SAC on August 28, 2007.
Complainant further stated that during that meeting, she felt harassed as the SAC went through each line of her letter rescinding her resignation. She stated that the SAC asked questions about her breastfeeding, which made her feel uncomfortable, including questions about why she could manage to work two days per week while breastfeeding, but not five days per week. Complainant stated that she informed the SAC and S1 that it was more manageable to breastfeed utilizing a breast pump two days per week instead of an entire five-day work week. She further stated that the SAC denied her verbal request for LWOP on September 12, 2007, and on September 24, 2007, informed her that she must work full-time. Complainant stated that on November 27, 2007, she resigned effective December 7, 2007, because of the strain full-time employment placed on her and her family.
Complainant stated that she chose to keep her primary residence in South Florida because she did not want to separate her children and uproot her toddler who had been at the same daycare facility her whole life. She stated that the PTAP was the ideal solution for her situation, one that had been working just fine for three years. Complainant stated that with the addition of a second child, the PTAP was a desirable program to balance the needs of the FBI and its mission with the needs of a family consisting of a newborn and a toddler.
The SAC stated that, in early 2007, Agency Headquarters inspection personnel reviewed and evaluated the allocation and deployment of Special Agent resources for Jacksonville, and the Domestic Terrorism program was rated "Effective but Inefficient" because there was insufficient staffing. He stated that this determination required a reallocation of Jacksonville Special Agents to address the cited problems. The SAC further stated that non-managerial Special Agent staffing had been severely decreased because four Special Agents volunteered for eighteen-month TDY assignments and another was deployed to military duty in Iraq. Additionally, the SAC stated that the FBI greatly reduced the number of new agent hires and therefore stopped sending new Special Agents to Jacksonville for a period of time, while Jacksonville lost new agents to the rotational transfer policy, which transferred new Special Agents away from Jacksonville to one of the F.B.I.'s 17 largest offices.
The SAC further stated that he was aware that Complainant had two small children and a need to arrange for their daycare; therefore, he granted Complainant 10 weeks of leave to take care of family matters, or until early May 2007. He also stated that he granted Complainant's subsequent request for an additional 12 weeks of FMLA leave, which extended her time off to August 2007. The SAC stated that he denied Complainant's July 2007 request for 14 weeks LWOP because the same staffing issues remained. He stated that he explored the possibility of reassigning Complainant to the Miami Division as a Financial Analyst, but Complainant informed him that she was not interested in that position. The SAC stated that office manpower was greatly reduced because of Complainant's absence, and he learned that a Special Agent who was assigned to Civil Rights was also covering cases that Complainant would have covered, because Complainant was not available to handle investigative matters. The SAC also stated that, during a meeting with Complainant, she brought up breastfeeding, but he did not ask any "awkward or extensive" questions about this matter.
S1 stated that the Jacksonville office had been reduced from ten to four Special Agents, and Complainant's participation in PTAP posed a disadvantage to the mission of the office. S1 stated that after Complainant returned to the office from extended leave, Complainant was assigned tasks on which she previously worked, as well as new investigative duties. However, S1 also stated that he was hesitant to assign her more complicated and long-term cases because he knew from conversations with Complainant that she was weighing her options about whether to continue her employment with the Agency, and had submitted a letter of resignation. He further stated that when assigning long-term public corruption investigations to agents, he has to consider the long-term availability of a Special Agent.
.
S1 further stated that he attended a meeting with Complainant, SAC, and another Agency official in which Complainant's removal from the PTAP and leave issues was discussed. He stated that he recalled Complainant initiating comments about breastfeeding her youngest child but did not recall any inappropriate comments being made.
The AJ's Decision
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an AJ. Complainant timely requested a hearing. On March 25, 2009, the Agency moved for a decision without a hearing, to which Complainant responded in objection. On March 28, 2009, the AJ issued a decision without a hearing in which she found that Complainant failed to prove that she was subjected to unlawful sex discrimination. Specifically, the AJ determined that Complainant failed to establish a prima facie case of sex discrimination and the alleged actions were not severe or pervasive enough to constitute a hostile work environment. The AJ further found that there was no inference of sex discrimination in this case because Complainant failed to show that similarly-situated employees outside her protected class were treated more favorably than she was treated. The AJ noted that, out of the 88 Special Agents who participated in the PTAP nationwide, all were removed from the program by February 2008. The AJ further found that Complainant failed to prove that the Agency's explanations for its actions were pretext for unlawful discrimination. The Agency subsequently issued a final order fully adopting the AJ's findings.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the AJ improperly issued a decision without a hearing in favor of the Agency. Complainant argues that there is a genuine issue of material fact in this case regarding whether management acted on the stereotypical notion that working mothers are less productive than men. She contends that S1 noted that he was hesitant to assign Complainant added responsibilities when she returned from LWOP/FMLA, and the (female) regional representative for the Female Special Agent Advisory Committee commented that Complainant was harming the PTAP program for future agents and asked Complainant if she wanted to be an FBI agent or a mom during a telephone conversation in October 2007. Additionally, Complainant maintains that an e-mail from the SAC reveals that he thought that Complainant had negatively impacted the Jacksonville office because of her absences. Complainant further argues that the Agency could have done other things to alleviate the agent shortage, including rescinding an agent's commuting arrangement1 and asking for additional TDY transfers from other offices. Complainant maintains that the Jacksonville office has been understaffed since 1988, and Complainant's unit has been understaffed since the September 11, 2001, terrorist attacks. Further, Complainant contends that the Agency failed to provide a pertinent evidence for the record, including a copy of the audit and the identities of all agents in the PTAP. The Agency requests that we affirm its final order.
STANDARD OF REVIEW
In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, � VI.B. (Nov. 9, 1999) (providing that both the Administrative Judge's determination to issue a decision without a hearing, and the decision itself, are subject to de novo review). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chap. 9, � VI.A. (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
Decision without a Hearing
We must first determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case.
If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Defense, EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing). After a careful review of the record we find that there was no genuine issue of material fact or credibility so as to warrant a hearing; a decision without a hearing therefore was appropriate.
Disparate Treatment and Hostile Work Environment
Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978).
Once Complainant has established a prima facie case, the burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Com. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983).
To establish a claim of harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
For purposes of analysis and without so finding, we assume that Complainant established a prima facie case of sex discrimination and reprisal for each claim. Nonetheless, the Commission finds that the Agency provided legitimate, non-discriminatory reasons for its actions. Specifically, the Agency stated that it removed Complainant from the PTAP program because the Agency's TDY program and rotational policy resulted in a need for more full-time Special Agents in the Jacksonville office. Management further stated that it denied Complainant's request for 14 weeks leave without pay because Complainant had already been on leave for 22 weeks, and there was a staffing shortage in the Jacksonville office. The SAC noted that the Jacksonville office had been negatively impacted because of four Special Agents who had volunteered for TDY assignments, and therefore, he had to severely restrict or eliminate flexible work days and flex-time hours of Jacksonville staff members, including Complainant.
S1 stated that after Complainant returned to the office from extended leave, she was assigned tasks on which she previously worked as well as new investigative duties. However, S1 also stated that he was hesitant to assign her more complicated and long-term cases because he knew from conversations with Complainant that she was weighing her options about whether to continue her employment with the Agency and had submitted a letter of resignation. S1 and the SAC also stated that, during a meeting with Complainant, she brought up breastfeeding, but management did not ask "awkward or extensive" questions about this matter.
Complainant argues that there is a genuine issue of material fact in this case regarding whether management acted on the stereotypical notion that working mothers are less productive than men. She contends that the S1 noted that he was hesitant to assign Complainant added responsibilities when returned from LWOP/FMLA, and argued that the female regional representative for the Female Special Agent Advisory Committee commented that Complainant was harming the PTAP program for future agents and asked Complainant if she wanted to be an FBI agent or a mom during a telephone conversation in October 2007.
Although the federal EEO laws do not prohibit discrimination against caregivers per se, there are circumstances in which discrimination against caregivers might constitute unlawful disparate treatment. For instance, Title VII does not permit employers to treat female workers less favorably merely on the gender-based assumption that a particular female worker will assume caretaking responsibilities or that a female worker's caretaking responsibilities will interfere with her work performance. Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities, EEOC Notice No. 915.002, at II.A.3 (May 23, 2007). Further, Title VII does not permit employers to treat female workers less favorably merely on the gender-based assumption that a particular female worker will assume caretaking responsibilities or that a female worker's caretaking responsibilities will interfere with her work performance. Id. Because stereotypes that female caregivers should not, will not, or cannot be committed to their jobs are sex-based, employment decisions based on such stereotypes violate Title VII. Id.
In this case, however, S1 stated that he was reluctant to assign Complainant more complicated and long-term cases because he knew from conversations with Complainant that she was weighing her options about whether to continue her employment with the Agency and had submitted a letter of resignation. The record further reveals that in an e-mail to an Agency official dated September 7, 2007, the SAC reported that the Agency had to use a Civil Rights Agent to perform Public Corruptions assignments because of Complainant's absences and part-time status. We do not find that these statements reflect gender-based assumptions that Complainant would assume caretaking responsibilities that interfered with her work performance. Instead, these comments are focused on Complainant's availability to perform particular assignments and the impact of Complainant's prior absences and work schedule on the Jacksonville office, not Complainant's status as a mother or caregiver.
In contrast, the Female Special Agent Advisory Committee representative's question about whether Complainant wanted to be a mom or an FBI Agent reflects the gender-based stereotype that mothers are not as committed to their jobs as other employees. However, the record does not contain any evidence that this representative was responsible for removing Complainant from the PTAP, denying her request for leave without pay, or providing her with assignments. While Complainant maintained that she hoped the representative would intercede on her behalf, the representative was not responsible for the events at issue in this case. As such, we cannot find that the representative's inappropriate comment supports a finding that the SAC's and S1's actions were motivated by discriminatory animus.
Complainant also argues that the Agency could have done other things to alleviate the agent shortage, including rescinding an agent's commuting arrangement and asking for additional TDY transfers from other offices. Although there may have been alternatives ways for the Agency to respond to its need for more full-time agents, the Commission does not second-guess the business judgment of Agency officials regarding personnel decisions without a demonstrably discriminatory motive. Texas Dep't of Comm. Affairs v. Burdine, 450 U.S. 248, 249 (1981).
Complainant further contends that the Agency failed to provide a copy of pertinent evidence for the record, including a copy of the audit and the identities of all agents in the PTAP. However, only Special Agents from the Jacksonville office were similarly situated to Complainant in this case, and Complainant failed to show that any Jacksonville Special Agent was treated more favorably than she was treated with regard to the PTAP. Moreover, the record reveals that all Special Agents were removed from the PTAP nationwide by early 2008. Regarding the audit, we note that Complainant acknowledged that she was a "casualty" of the TDY program and the rotational policy for newly-hired Special Agents that negatively impacted Jacksonville staffing. Exhibit 2, p. 4. As such, she corroborates the Agency's explanation for her removal from the PTAP and denial of additional LWOP.
Further, Complainant alleges that the SAC asked questions about breastfeeding, which made her feel uncomfortable, including questions about why she could manage to work two days per week while breastfeeding, but not five days per week. However, Complainant informed management that she needed additional leave and the PTAP because of her need to breastfeed. As such, it was reasonable for management to inquire how the requested leave and the PTAP were related to Complainant's asserted breastfeeding concerns.
Consequently, we find that Complainant failed to prove that the Agency's non-discriminatory explanations were pretext for unlawful discrimination. As such, a finding that Complainant was subjected to a hostile work environment is also precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Consequently we find that Complainant failed to prove that she was subjected to unlawful discrimination under disparate treatment or hostile work environment analyses.
Constructive Discharge
Constructive discharge occurs when an employee resigns from her employment because she is being subjected to unlawful employment practices. If the resignation is directly related to the Agency's unlawful employment practices, it is a foreseeable consequence of those practices and constitutes a constructive discharge. The Agency is responsible for a constructive discharge in the same manner that it is responsible for the outright discriminatory discharge of a complainant. In order to establish that she was constructively discharged from her position, Complainant must show: (1) that her resignation resulted from the agency's actions; (2) that the agency's actions were discriminatory; and (3) that a reasonable person in her situation would have found the agency's actions intolerable. See Malpass v. Dep't of Veterans Affairs, EEOC Request No. 05920527 (July 20, 1992). Therefore, in order to establish that she was constructively discharged, a complainant must first show that the agency's actions were discriminatory.
Here, Complainant contends that she was forced to resign because she was subjected to harassment. We find, however, that Complainant has not established that the Agency's actions which form the basis of this claim were discriminatory. Further, we do not find that the Agency's actions rise to the level of intolerable conduct. Accordingly, we find that Complainant has not established that she was constructively discharged.
CONCLUSION
Accordingly, based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order for the reasons set forth in this decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 27, 2012
Date
1 This employee commuted from Jacksonville to Washington, D.C., as part of an indefinite TDY assignment. SAC's Deposition, at 32:7-17.
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0120093506
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013