0120103082
12-10-2010
Calvin Washington, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Calvin Washington,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120103082
Hearing No. 410-2009-00135X
Agency Nos. ATL-08-0021-SSA, ATL-08-0724-SSA
DECISION
On July 6, 2010, Complainant filed an appeal from the Agency's June 7,
2010, final order concerning his equal employment opportunity (EEO)
complaints 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: (1) whether the EEOC Administrative Judge's
issuance of a decision without a hearing was appropriate; and (2) whether
Complainant established that the Agency discriminated against him on
the bases of race, sex, and reprisal for engaging in prior protected
EEO activity.
BACKGROUND
At the time of events giving rise to these complaints, Complainant
worked as a Hearing Office Chief Administrative Law Judge (HOCALJ) at
the Agency's Office of Disability Adjudication and Review (ODAR), Region
IV Hearing Office in Macon, Georgia. Complainant was the head of the
Macon Hearing Office but worked under the Assistant Regional Chief ALJ
(ARCALJ), the Regional Chief ALJ (RCALJ), and the Chief ALJ (CALJ).
Agency No. ATL-08-0021-SSA
Around May or June 2007, Complainant applied for two HOCALJ positions:
one in Orlando, Florida and one in Chattanooga, Tennessee. In memoranda
announcing the two vacancies to all ALJs, RCALJ noted that HOCALJs
"must be prepared to handle a variety of issues, including personnel and
resource management, labor and employee relations matters, and workload
management." In addition, RCALJ noted that candidates "should ensure
that their application and supporting statements clearly delineate
all demonstrated leadership experience, especially as it relates
to managing entire offices or large groups of people." RCALJ was
the selecting official and ARCALJ was the recommending official.
The selection process contained the following steps: (1) candidates
submitted a resume and statement of interest; (2) the ODAR Regional
Office staff collected data on each candidate's case productivity;1
(3) ARCALJ interviewed all the candidates and asked them the same 12
questions;2 and (4) RCALJ and ARCALJ discussed the candidates prior to
the selections. Around September or October 2007, RCALJ announced the
selection of an ALJ from the Albuquerque, New Mexico Hearing Office for
the Orlando position and an ALJ from the Chattanooga Hearing Office for
the Chattanooga position.
On December 15, 2007, Complainant filed an EEO complaint alleging that the
Agency discriminated against him on the bases of race (African-American)
and sex (Male) when he was not selected for the HOCALJ positions in
Orlando, Florida and Chattanooga, Tennessee.
Agency No. ATL-08-0724-SSA
From 2005 to 2007, Complainant was the focus of two Agency investigations
regarding his performance. In a letter dated July 7, 2005, one of
Complainant's subordinates, an ALJ at the Macon Hearing Office, complained
to the Regional Vice President for the Association of Administrative Law
Judges that Complainant sometimes rendered fully favorable on-the-record
decisions to manipulate performance numbers. Specifically, the ALJ
noted that Complainant issued favorable decisions at an extraordinarily
high rate and expressed his concern about the quality of those decisions.
In a report dated January 22, 2007, the Office of Inspector General (OIG),
Office of Investigations, Atlanta Field Division, summarized for RCALJ its
investigation of alleged misconduct by Complainant. The OIG report found
that Complainant had a 98.2% case reversal rate and had a clear pattern
of taking a particular adjudicative strategy to an extreme, resulting
in the payment of claims that did not qualify on their merits. In a
report dated August 9, 2007, ODAR's Office of Quality Performance (OQP)
shared the results of a special review of decisions issued by Complainant.
The OQP report found that Complainant issued the appropriate decision
in a very high percentage of his cases, but noted some "red flags"
concerning the duration and "unorthodox" conduct of his hearings.
According to e-mail traffic from November 2007 to January 2008, the
Office of the CALJ prepared to address the allegations in the OIG report,
take appropriate action, and follow-up to ensure that procedures were
followed in the future. Specifically, one e-mail dated January 21,
2008 noted that management did not support the type of "cherry picking"
of cases that Complainant appears to have participated in and expressed
concern about the procedural errors cited in the OIG report.
In a memorandum dated February 29, 2008, CALJ solicited interest among
all ALJs to participate in the Agency's New ALJ Mentoring Program
and serve as mentors for incoming ALJs in 2008. CALJ noted that the
Agency was "seeking judges with good interpersonal, mentor and docket
management skills, as well as being versed in the law, regulations and
[A]gency policy." According to e-mail traffic in March and April 2008,
Complainant was one of two volunteers in the Macon Hearing Office
to mentor the two incoming ALJs and the Agency began the process of
pairing up incoming ALJs with mentors. In an e-mail dated April 7,
2008, RCALJ responded to an e-mail inquiring about Complainant's name
on the tentative list of mentors and expressed his concern that "[w]hat
we need are good mentors" but "[n]ot a lot of good judges are stepping
up to the plate." In a series of e-mails dated May 5 and 6, 2008, the
Region IV New ALJ Mentoring Program Coordinator (MPC) informed a Program
Analyst (PA) in the Office of the CALJ that Complainant was the mentor
assigned to a particular ALJ (ALJ1) but noted that there was a question
as to whether Complainant would actually assume that responsibility.
The e-mails referenced RCALJ as the individual who would decide whether
to recommend Complainant as a mentor. In an e-mail dated May 6, 2008,
MPC sent out a mentor pairing list to the ALJ mentors and carbon copied
it to the Region IV HOCALJs. The name of the mentor to ALJ1 was left
blank on the list. In an e-mail dated June 3, 2008, MPC informed PA
that another ALJ (ALJ2) in the Macon Hearing Office, not Complainant,
would serve as the mentor to ALJ1. In an e-mail dated June 23, 2008,
the Macon Hearing Office Director (HOD) sought clarification from PA as
to who was mentoring ALJ1; HOD stated that she thought Complainant was
mentoring ALJ1 and asked if there had been a change. In an e-mail dated
June 24, 2008, PA informed HOD that the Office of the CALJ concurred with
Region IV's recommendation of designating ALJ2 as the mentor to ALJ1.
In an e-mail dated June 26, 2008, Complainant informed RCALJ that he
was under the impression that he had been approved to serve as a mentor
and was "surprised, puzzled, and greatly embarrassed" when HOD, in front
of ALJ1, asked if he had seen the e-mails stating that he would not be
allowed to be ALJ1's mentor and that ALJ2 would be the mentor instead.
On October 10, 2008, Complainant filed an EEO complaint alleging that
the Agency discriminated against him on the basis of reprisal for prior
protected EEO activity under Title VII when he was "de-selected" to
mentor ALJ1.
Consolidation of Complaints and AJ's Decision
At the conclusion of the investigations, the Agency provided Complainant
with copies of the report of investigation and notice of his right
to request a hearing before an EEOC Administrative Judge (AJ).
The complaints were consolidated for a hearing at the request of
Complainant and without objection by the Agency. Over Complainant's
objections, the AJ assigned to the case granted the Agency's February
26, 2010, motion for a decision without a hearing and issued a decision
without a hearing on June 1, 2010. The Agency subsequently issued a
final order adopting the AJ's finding that Complainant failed to prove
that the Agency subjected him to discrimination as alleged.
Regarding his non-selections, the AJ initially noted that the Agency did
not contest Complainant's assertion that he established a prima facie
case of discrimination. Next, the AJ found that the Agency articulated
legitimate, nondiscriminatory reasons for its actions. For the Orlando
non-selection, the Agency explained that the selectee was better qualified
than Complainant because of her impressive management credentials.
For the Chattanooga non-selection, the Agency explained that the selectee,
an ALJ already in Chattanooga, was chosen for several reasons: (1)
the selectee, who at the time was the Acting HOCALJ in Chattanooga,
had been functioning well in that capacity; (2) the office did not
require an additional ALJ; and (3) the Agency could avoid incurring
relocation costs. Finally, the AJ addressed Complainant's assertions
that the Agency's reasons were pretextual and found that Complainant
had failed to make such a showing. For the Orlando non-selection,
Complainant asserted that he was more qualified than the selectee because
he already had HOCALJ experience managing a hearing office with over 30
employees and a large budget; the AJ, however, found that the selectee
had prior experience managing an organization with over 200 employees
and the breadth of her experience gave her a competitive advantage over
Complainant. Complainant also asserted that ALJ selection decisions
within ODAR were based on productivity and he was more productive than
the selectee; the AJ, however, found that Complainant did not show
that productivity trumped all other factors considered in the selection
process. For the Chattanooga non-selection, Complainant asserted that
the Agency's citation of relocation costs was pretextual because the
vacancy announcement expressed a willingness to pay relocation costs;
the AJ, however, found that the mere fact that the Agency was willing to
pay relocation costs if it had to did not mean that it would willingly
pay them even when it could avoid doing so. Complainant also cited as
evidence of race discrimination the fact that only two of the 19 ALJs
recently promoted to HOCALJs were African-American; the AJ, however,
found that Complainant did not show that there was a gap between the
percentage of HOCALJs who were African-American and the percentage of
ALJs who applied to be HOCALJs.
Regarding his "de-selection" as a mentor, the AJ initially found that
Complainant established a prima facie case of reprisal. Next, the AJ
found that the Agency articulated legitimate, nondiscriminatory reasons
for its actions. RCALJ and CALJ explained that they had doubts as to
whether Complainant was the best choice as a role model for a new ALJ
because of his high allowance rate and questions raised by the OIG and OQP
reports. Finally, the AJ found that Complainant had not produced evidence
to support a finding that the Agency's stated reasons were pretextual.
The AJ noted Complainant's assertions of pretext and made the following
observations: (1) the OQP report described Complainant's case management
practices as "unorthodox" and the OIG report had criticized them in even
harsher terms; (2) contemporaneous documents indicated that the Agency
frowned on Complainant's practice of "cherry picking" the cases that
were easiest for resolution; (3) there was no evidence that the Agency
intentionally misled Complainant about his status as a mentor for the
sake of embarrassing him or that he was the victim of an "administrative
coup" - the Agency failed to provide Complainant with notification that
he would not serve as the mentor, but it had not provided him with
notification that he was tentatively selected in the first place and
in fact had transmitted an e-mail to Complainant with his name absent
from the list of mentors. The AJ found that, when viewing the Agency's
explanations for its actions in the context of the chain of events that
led to the ultimate assignment of ALJ2 as the mentor, evidence did not
support a finding that the Agency's stated reasons were pretextual.
CONTENTIONS ON APPEAL
On appeal, Complainant, through his attorney, adopted his Memorandum
in Opposition to the Agency's Motion for Summary Judgment as his brief
in support of his appeal.3 In his Opposition, Complainant asserted
that genuine issues of material fact exist as to whether the Agency's
stated reasons were a pretext for unlawful discrimination. Regarding his
non-selections, Complainant initially asserted that, because the Agency
conceded that he had established a prima facie case of discrimination,
"its stated reasons must be so powerful that it completely destroys
[his] evidence of pretext" in order to prevail on summary judgment
- and that the Agency's stated reasons did not carry that power.
In addition, Complainant asserted that he was more qualified than the
selectees because he had more HOCALJ experience and a substantially
higher productivity rate. Further, Complainant asserted that the
Agency presented no evidence that it would have been a financial
burden to relocate Complainant to Chattanooga if he had been hired.
Finally, Complainant asserted that the HOCALJ hiring statistics from the
preceding two years show that RCALJ filled most of the positions with
white males and that RCALJ chose the selectee for the Orlando position
because he "needed a black female to complement" the ALJs in Region IV.
Regarding his "de-selection" as a mentor, Complainant asserted that it
was "totally unbelievable" that the Agency deemed him unfit to serve
as a mentor because it allowed him to continue serving as a HOCALJ and
had no documentation to show that he had been counseled. In addition,
Complainant asserted that the OQP report had validated his high allowance
rate and that, given the substantial emphasis management placed on
productivity, he was a prime candidate to serve as a mentor.
In response, the Agency argued that its burden to show a legitimate,
nondiscriminatory reason is "exceedingly light" and is a burden
of production, not of persuasion. In addition, the Agency argued
that Complainant failed to show that its articulated legitimate,
nondiscriminatory reasons were pretextual. Regarding his non-selection,
the Agency argued that Complainant did not establish that his
qualifications were plainly superior to those of the selectees. For the
Orlando non-selection, the Agency argued that Complainant having more
years of ALJ experience than the selectee did not necessarily make
him more qualified to meet the needs of the organization. For the
Chattanooga non-selection, the Agency argued that Complainant did not
rebut its statements that the Chattanooga Hearing Office was fully
staffed and therefore did not require an additional ALJ, or that it
would benefit financially by not paying relocation costs. For both
non-selections, the Agency argued that, although RCALJ and ARCALJ obtained
the candidates' productivity rates as part of the selection process,
there was no evidence that they considered productivity as a primary
factor in assessing the candidates' ability to manage a hearing office.
Regarding his "de-selection" as a mentor, the Agency argued that the
OQP report, contrary to Complainant's assertion that it exonerated him,
found problems with his hearing practices. The Agency noted that,
given the questions regarding Complainant's hearing practices raised
by both the OIG report and the OQP report, the AJ properly found that
there was nothing pretextual about management's assertions that they had
doubts about whether Complainant was the best choice of role model for a
new ALJ. The Agency also argued that, although it did not specifically
notify Complainant that he had been replaced as ALJ1's mentor, there
was no evidence that the events that transpired on June 24, 2008 were
intended to embarrass him.
ANALYSIS AND FINDINGS
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
(EEO MD-110), at Ch. 9, � VI.B. (Nov. 9, 1999) (providing that an AJ's
"decision to issue a decision without a hearing pursuant to [29 C.F.R. �
1614.109(g)] will be reviewed de novo"). 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 Ch. 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").
Summary Judgment
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
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 Def., EEOC Appeal No. 01A24206 (July 11, 2003).
Finally, an AJ should not rule in favor of one party without holding a
hearing unless he 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 AJ 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 AJ 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 the AJ's issuance
of a decision without a hearing was appropriate. The record has been
adequately developed, Complainant was given notice of the Agency's motion
to issue a decision without a hearing, he was given an opportunity
to respond, he was given a comprehensive statement of undisputed
facts, and he had the opportunity to engage in discovery. On appeal,
Complainant asserts that a hearing is necessary because genuine issues
of material fact exist. We find that, even assuming all facts in favor
of Complainant, a reasonable fact-finder could not find in Complainant's
favor, as explained below. Therefore, no genuine issues of material
fact exist. Under these circumstances, we find that the AJ's issuance
of a decision without a hearing was appropriate.
Disparate Treatment
To prevail in a disparate treatment claim such as this, Complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially establish a prima facie case by demonstrating that he was
subjected to an adverse employment action under circumstances that would
support an inference of discrimination. Furnco Constr. Co. v. Waters,
438 U.S. 567, 576 (1978). Proof of a prima facie case will vary
depending on the facts of the particular case. McDonnell Douglas, 441
U.S. at 804 n.14. The burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Dep't
of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, Complainant must prove, by a preponderance of the evidence, that
the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr v. Hicks,
509 U.S. 502, 519 (1993).
Prima Facie Case
To establish a prima facie case of disparate treatment on the bases of
race and sex, Complainant generally must show that: (1) he is a member
of a protected class; (2) he was subjected to an adverse employment
action concerning a term, condition, or privilege of employment;
and (3) he was treated differently than similarly situated employees
outside his protected class, or there is some other evidentiary link
between membership in the protected class and the adverse employment
action. McCreary v. Dep't of Def., EEOC Appeal No. 0120070257 (Apr. 14,
2008); Saenz v. Dep't of the Navy, EEOC Request No. 05950927 (Jan. 9,
1998); Trejo v. Soc. Sec. Admin., EEOC Appeal No. 0120093260 (Oct. 22,
2009). Regarding his non-selections, record reflects that Complainant has
shown that: (1) he is an African-American male; (2) he was not selected
for the HOCALJ positions in Orlando and Chattanooga; (3) the Orlando
selectee was an African-American female and the Chattanooga selectee
was a Caucasian male. Therefore, we find that Complainant established a
prima facie case of discrimination on the basis of sex for the Orlando
non-selection and a prima facie case of discrimination on the basis of
race for the Chattanooga non-selection.
To establish a prima facie case of disparate treatment on the basis
of reprisal, Complainant generally must show that: (1) he engaged in a
protected activity; (2) the Agency was aware of the protected activity;
(3) subsequently, he was subjected to adverse treatment by the Agency;
and (4) a nexus exists between the protected activity and the adverse
treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340
(Sept. 25, 2000). Regarding his "de-selection" as a mentor, the record
reflects that Complainant has shown that: (1) in December 2007, he filed
an EEO complaint against RCALJ; (2) in December 2007, RCALJ became aware
of his EEO activity through contact with the EEO Counselor; (3) in June
2008, RCALJ revised an initial recommendation for Complainant to serve
as a mentor;4 and (4) RCALJ, the subject of the EEO complaint, played a
deciding role in Complainant not serving as a mentor. Therefore, we find
that Complainant has established a prima facie case of discrimination
on the basis of reprisal.
Agency's Legitimate, Nondiscriminatory Reasons
Once Complainant has established a prima facie case, the burden then
shifts to the Agency to articulate a legitimate, nondiscriminatory
reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine,
450 U.S. at 253. We note that the burden incumbent upon the Agency
to respond to Complainant's prima facie case with a legitimate,
nondiscriminatory reason for its actions is a burden of production,
not persuasion. Reeves, 530 U.S. at 142. While the Agency's burden of
production is not onerous, it must nevertheless provide a specific, clear,
and individualized explanation for the treatment accorded Complainant.
Lorenzo v. Dep't of Def., EEOC Request No. 05950931 (Nov. 6, 1997).
Regarding Complainant's non-selections for the HOCALJ positions,
we find that the Agency articulated a legitimate, nondiscriminatory
reason for its actions. For the Orlando non-selection, RCALJ attested
that while Complainant had managerial experience as the HOCALJ in the
Macon Hearing Office and at another federal agency, the selectee was
the stronger candidate because she had extensive management experience,
spanning multiple legal organizations and many years. For the Chattanooga
non-selection, RCALJ attested that the selectee had performed well as
the Acting HOCALJ and that, by selecting the selectee, he was able to
keep the number of ALJs in the Chattanooga Hearing Office stable and
eliminate the need to pay relocation costs.
Regarding Complainant's "de-selection" as a mentor, we find that the
Agency articulated a legitimate, nondiscriminatory reason for its actions.
RCALJ attested that he tried to not use HOCALJs as mentors due to workload
considerations, but had initially recommended Complainant because there
were two incoming ALJs for the Macon Hearing Office and only one other
ALJ there had volunteered to be a mentor. In addition, RCALJ attested
that he subsequently revised his recommendation of Complainant after
ALJ2 volunteered to be a mentor. Further, RCALJ attested that he was
concerned about whether Complainant would be a good role model for a new
ALJ given his abnormally high allowance rate. Finally, CALJ attested
that, in light of the OIG and OQP reports, he had concerns as to whether
Complainant should serve as a mentor.
Pretext
Because the Agency articulated a legitimate, nondiscriminatory reason
for its actions, the burden shifts to Complainant to demonstrate by the
preponderance of the evidence that the Agency's reasons are a pretext
for discrimination. Upon review of the record, we concur with the AJ's
finding that Complainant failed to show that the Agency's reasons were
pretextual. In doing so, we note that the AJ's decision, summarized in
detail above, thoroughly addressed the assertions raised by Complainant in
his Memorandum in Opposition to the Agency's Motion for Summary Judgment.
In addition, we note that Complainant did not raise any new contentions
on appeal. Accordingly, we find that Complainant failed to show that
the Agency's explanations were a pretext for discrimination.
CONCLUSION
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.
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
____12/10/10______________
Date
1 The collected data reflected the following: (1) from May 2006 to May
2007, Complainant issued 1400 decisions whereas the Orlando selectee
issued 1024 decisions; and (2) from June 2006 to June 2007, Complainant
issued 1439 decisions whereas the Chattanooga selectee issued 639
decisions.
2 The record reflects that ARCALJ recorded, but did not score, the
candidates' interview responses.
3 Complainant did not raise any new contentions on appeal.
4 Although the record reflects that ALJs did not receive performance
appraisals, ARCALJ attested that an ALJ could include the experience of
being a mentor on his or her resume.
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0120103082
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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