0120123132
05-14-2015
Complainant, v. Bill Johnson, President and Chief Executive Officer, Tennessee Valley Authority, Agency.
Complainant,
v.
Bill Johnson,
President and Chief Executive Officer,
Tennessee Valley Authority,
Agency.
Appeal No. 0120123132
Agency No. TVA-2012-012
DECISION
On August 7, 2012, Complainant filed a timely appeal of the July 9, 2012 Agency decision, concerning his 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 deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). The Commission REVERSES the Agency's finding of no discrimination.
BACKGROUND
At the time of his complaint, Complainant worked as a Multi-Skilled Electrician in the Agency's New Johnsonville Fossil Plant in New Johnsonville, Tennessee.
In an amended complaint, Complainant alleged that that the Agency discriminated against him when it subjected him to a hostile work environment on the bases of race (African-American) and reprisal for opposing protected activity when:
1. On August 5, 2011, he discovered a hangman's noose in the rear of an Agency truck in the New Johnsonville Fossil Plant.
2. On August 11, 2011, when Complainant reported the noose to a foreman, the foreman remarked that "[i]t wasn't a legal noose because it has seven knots and not thirteen."
3. On August 11, 2011, Complainant felt that management did not respond properly to the discovery of the noose.
4. On August 19, 2011, a supervisor asked whether damage to the truck was harassment.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an EEOC Administrative Judge or for issuance of an Agency decision. Complainant requested an Agency decision pursuant to 29 C.F.R. � 1614.110(b).
Factual Background
On Friday, August 5, 2011, during a conversation with Employee A, a Level 3, Mechanic Steam Pipefitter, Complainant noticed a hangman's noose in the bed of the Agency truck in the rear. Complainant brought the noose to the attention of Employee A, who was driving, and an electrician contractor (CW) who was also in the truck.
Complainant stated that he did not return to work until Tuesday, August 9, 2011, the following week. On Thursday, August 11, 2011, Employee A and CW were accompanying Complainant to perform a crane inspection. Complainant again noticed the noose on the truck bed. Complainant called his supervisor, a Technician Level 5 Yard Maintenance Foreman (YMF), and brought the noose to his attention. The YMF told Complainant that the noose was not a "legal" hangman's noose because it had only seven knots and not 13.
On August 15, 2011, Complainant took the Yard Operations Supervisor (YOS), an African American to whom he did not report, to show him the noose. After Complainant showed it to the YOS, the YOS took the Plant Manager, a Maintenance Supervisor (MS-1), the Maintenance Superintendent and the "Ops Manager" to show them the noose.
Another Maintenance Supervisor (MS-2) subsequently issued Complainant a "Below Standards" Electronic Problem Observation Program (ePOP) for failure to report the noose in a timely manner.
On August 19, 2011, the Plant Manager sent an e-mail to management officials and an EEO Counselor directing that Complainant, who accepted a transfer to remove him from "the yard," report to the electric shop on August 22, 2011. The e-mail indicated to its recipients that anyone found condoning or participating in workplace harassment would be dealt with promptly and harassment would not be tolerated.
On August 22, 2011, the Plant Manager contacted TVA Police and Physical Security to investigate. The TVA police recommended that all yard operations employees complete diversity training. Complainant contacted the Agency's Office of Inspector General (OIG). The OIG did not conduct an investigation.
Internal and Agency police investigations were unable to determine who was responsible for the presence of the noose.
Agency Decision
The Agency concluded that Complainant had established a prima facie case of a hostile work environment based on race and reprisal. However, the Agency also concluded that the Agency rebutted Complainant's prima facie case because it had taken immediate and appropriate corrective action to address the harassment. The Agency further determined that it had provided legitimate, nondiscriminatory reasons for issuing the ePOP, i.e., Complainant failed to timely report the noose incident. The Agency concluded also that Complainant had failed to show that the Agency's reason for its actions was pretextual.
In its decision, the Agency determined that although the issuance of the ePOP did not constitute reprisal, it was nonetheless directing management to expunge the ePOP from the "electronic data base," if it remained in the database, and from Complainant's Personal History Record" (PHR) and other management records. The Agency indicated that it so directed management in reliance on Van Druff v. Dep't of Defense, EEOC Appeal No. 01963759 (Oct. 30, 1998).1
CONTENTIONS ON APPEAL
Complainant did not raise any arguments on appeal except to submit, with his appeal, the Agency's Prohibiting Discrimination and Harassment in the Workplace Policy Statement and an August 24, 2011 e-mail to the Agency Equal Employment Compliance Office which was already contained in the ROI.
In its opposition to Complainant's appeal, the Agency asserts that its decision should be upheld. The Agency contends that the Complainant cannot show that he was subjected to a hostile work environment; that the Agency took immediate and corrective action to address Complainant's complaint; that the Agency had articulated legitimate, nondiscriminatory reasons for issuance of the ePOP; and that Complainant had failed to show pretext.
ANALYSIS AND FINDINGS
Impartiality of the Agency's Equal Opportunity Compliance Office (EOC)
As an initial matter, the Commission addresses impartiality of the EOC office, the Agency office responsible for the processing of discrimination complaints. The record contains a September 14, 2012 e-mail from the Senior Manager of the EOC office to MS-2 and the Employee Relations Consultant with copies to the Manager of Employee Relations Fossil Operations, the Plant Manager, and other staff apparently connected to the EOC office. In the e-mail, the EOC Senior Manager stated: "Hopefully, [Complainant's] appeal will be dismissed in short order, but we will keep you posted." The gratuitous comment about dismissal made to a management official involved in the complaint by a senior EEO official who was the director of the EOC office and who issued the Agency decision in this complaint and signed off on other matters in the complaint was inappropriate. Impartiality and the appearance of impartiality are important to the credibility of an equal employment program. See EEOC Management Directive 110, Chap.1, � III (Nov. 9, 1999).
The Commission next addresses the merits of the claim of discrimination.
Hostile Work Environment
Complainant claims that he was subjected to a hostile work environment. To establish this claim, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he 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 his 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
The conduct is evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. 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. See Harris v. Forklift Systems, Inc. 510 U.S. 17, 21-22 (1993); Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). The evaluation "requires careful consideration of the social context in which particular behavior occurs and is experienced by its target." Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998).
In applying this standard, the Commission recognizes that Complainant's claim of hostile work environment essentially involves a single incident and management's response to that incident. In limited circumstances, however, we have held that certain events, by themselves, may support a finding of discrimination under Title VII. See Juergensen v. Dep't of Commerce, EEOC Appeal No. 0120073331 (Oct. 5, 2007) (a hangman's noose is "a highly charged and powerful symbol in the history of this country, calling up painful memories of the lynching of thousands of African Americans").
In the instant complaint, we find that Complainant first saw the noose on Friday, August 5, 2011, and pointed it out to Employee A and CW. The noose was not removed until August 15, 2011. We therefore conclude that this event involving a hangman's noose was an objectively hostile event which was sufficiently severe to alter the conditions of his employment and to create an abusive work environment. See Posey v. U.S. Postal Serv., EEOC Appeal No. 01986619 (July 10, 2011). "[A] noose evokes an image, particularly among African-Americans, of a disgraceful past of extreme violence and racial bigotry." Tootle v. Dep't of the Navy, EEOC Appeal No. 07A40127 (Feb. 10, 2006)(single incident of a noose in the middle of workspace of African American employees, even discounting the charged racial climate of the Agency, created a hostile work environment). It is not unreasonably to believe that the noose would lead Complainant, an African American, to feel physically threatened by its presence, given the history behind nooses in African American history.
The YMF, who was Complainant's supervisor, stated that Complainant did not seem upset by the incident. However, that Complainant brought the incident to the attention of his co-workers on August 5, 2011; told his supervisor on August 11, 2011; pulled the YOS out of a meeting on August 15, 2011 to show him the noose; raised it at an employee meeting; and asked to be removed from the area, are consistent with a finding that the noose's presence and the failure to remove it was hostile and threatening to him as an African American in a workplace where, there was a handful of African Americans and he was the only African American in his crew. An August 16, 2011 e-mail from MS-2 to MS-1, concerning the results of his interviews with the crew, also indicates that Complainant had shown the noose to Worker-1 on August 11, 2011; Worker-2 reported that he had heard Complainant talking about the noose; and Worker-3 had seen the noose on August 11 which indicates that although his reporting of the incident was dismissed by the YMF, his supervisor, Complainant felt that its continued presence and dismissal of its presence by his supervisor were hostile.
Regarding claim 4, the question was asked about damage to the truck. Complainant stated that after MS-2 read the harassment policy at the meeting, Complainant's supervisor "sarcastically" asked whether it was harassment if someone damaged the truck. According to Complainant, a light in the truck where the noose was found was busted out prior to the noose's discovery and an employee had confessed to damaging the truck. Complainant's supervisor did not remember making the statement. This claim, standing alone, does not state an independent claim and is viewed only as background and does not add to the claim of harassment. Complainant himself stated that the claim was a "side issue."
Agency's Liability
Having determined that the presence of the noose over a few days was sufficiently severe in Complainant's workplace and its presence dismissed so as to alter the conditions of his employment, the Commission next considers the Agency's liability. The Commission has held that an agency is liable for harassment by a co-worker or other non-supervisor when it "knows or should have known of the conduct, unless the Agency can show that it took immediate and appropriate corrective action." See 29 C.F.R. � 1604.11(d).
There is no evidence that a supervisor or a non-supervisor was responsible for the noose at the end of the spool of rope. There is also no evidence establishing by whom the noose was placed. However, the evidence establishes that employees used the truck. Employee A stated that the truck was used by "all employees" in the yard. Moreover, the Commission has also held that the Agency can be held liable for harassment by a non-employee. Accordingly, the Agency can be held liable for the presence of the noose.
We next consider when the Agency knew or should have known of the existence of the noose. After pointing out the noose to Employee A and CW, Complainant was away from work for the weekend. He returned to work the next week. On Thursday, August 11, 2011, when he had to perform crane work and had to use the truck, he noticed that the noose remained in the bed of the truck. Complainant reported the incident to YMF, his supervisor. We therefore find that the Agency knew, through its foreman, of the existence of the noose at least by August 11, 2011, and took no action. It is completely incredible for the Agency to assert that Complainant did not bring the presence of the noose to the attention of management until August 15, 2011 because the record is clear that he first brought the noose to his supervisor's attention on August 11, 2011, a fact uncontroverted by the supervisor himself. In addition, results of the interviews conducted by MS-2 disclose that other workers, besides Employee A and CW, knew about the noose at the latest by August 11, 2011. Though Complainant's supervisor stated that he had seen "a lot of them" (referring to noose-like knots) on Agency jobs for rigging purposes, no other management official provided that explanation. Management officials recognized the noose as a noose and the noose was also described as a noose in the Police Report. Moreover, photographs of the noose are contained in the record and speak for themselves.
Knowing at least by August 11, 2011 of the existence of the noose, the Agency must show that it undertook immediate and appropriate corrective action to avoid liability. Once an agency becomes aware of alleged harassment, it has a duty to investigate such charges promptly and thoroughly. See Rodriguez v. Dep't. of Veterans Aff., EEOC Appeal No. 01953850 (Aug. 29, 1996).
The Agency raises an affirmative defense when it shows that it took immediate and appropriate corrective action. Whether the Agency's action is appropriate depends upon "the severity and persistence of the harassment and the effectiveness of any initial remedial steps." Taylor v. Dep't of the Air Force, EEOC Appeal No. 05920194 (July 8, 1992).
Accordingly, the Commission will examine the appropriateness of the Agency's actions in addressing the harassment once it became aware of the noose.
There is no evidence that Complainant's supervisor, the YMF, reported the incident or took any action on Thursday, August 11, 2011, or thereafter. Instead, he dismissed the incident, telling Complainant that the noose was not a "legal" hangman's noose because it did not have enough knots in it. On Monday, August 15, 2011, Complainant again reported the presence of the noose. To do so, he interrupted the YOS, who was not in his chain of command, from a meeting to show him the noose which still remained in the truck. The YOS recalled that Complainant was very upset. As soon as his meeting ended, the YOS immediately reported the incident to the Maintenance Superintendent, the Plant Manager, and Manager-1. It was not until Monday, August 15, 2011, that the noose was apparently untied, four days after it was first reported to the YMF and after it had been seen by others in the workplace.
Also as evidence that the Agency did not take appropriate action is that, although MS-2 interviewed employees and Complainant on August 16, 2011, concerning whether the employees knew of the noose incident, he did not meet with his crew until Friday, August 19, 2011, eight days after the incident was first reported to Complainant's supervisor. In addition, when MS-2 held the meeting, it appears that he only read the Agency's harassment policy. Mere recitation of the harassment policy, without more, was not sufficient. Also, MS-2's affidavit reflects that he made no mention of the noose incident. Complainant, the only African American employee at the meeting, had to raise the issue himself.
That the hostility of the presence of a noose in the workplace was not conveyed at the employee meeting was evident in the statement of Employee A whose affidavit reflects that when asked in his affidavit about the topic of the meeting, he replied that he was not sure of the topic and was not sure if the meeting was a portion of a safety meeting or for a different topic. Employee A's recollection of the meeting is consistent with Complainant's assertion that the incident was handled lightly and that it was he who had to raise the noose incident at the meeting. Also, as late as September 2011 when Complainant's supervisor was interviewed by Agency police, he was still maintaining that the noose was not offensive, despite the employee meeting and Complainant's strong reaction during the meeting to the presence of the noose. The ineffectiveness of the employee meeting is also indicated in the Police Report which also reflects that three of the employees interviewed also did not believe that the noose was offensive which led the police investigator to recommend diversity training for staff in his report. There is no evidence that such training was conducted. The Commission also notes that Complainant stated in his affidavit that the Plant Manager "had the nerve" to ask him whether it was okay for the YMF, his supervisor whose response to the presence of the noose was dismissive, to provide harassment counseling to employees.
The Agency's lackluster response to the continuing hostile presence of the noose is also indicated in an August 24, 2011 e-mail to the Agency's Equal Opportunity Compliance (EOC) office requesting training on workplace sensitivity from the Employee Relations Consultant. This request occurred 19 days after the incident was first observed by Complainant and almost two weeks after Complainant first reported the incident to his supervisor. The record does not disclose whether any training was held as a result of the request.
The Agency's Police Report also reveals that its police was not contacted by the Plant Manager until August 22, 2011, and the police investigation did not begin until September 2, 2011.
The actions of Agency management do not appear to have conveyed or signaled to Complainant's co-workers in the Fossil Power Group the seriousness with which workplace discrimination should be viewed and how aggressively it would pursue disciplinary action if the perpetrator or perpetrators were identified.
The Commission acknowledges that there is not an exhaustive list or particular combinations of measures, steps or time frames that an agency has to use to insulate itself from liability but we have, among other things, considered the promptness of the Agency's response and counseling or training provided to the supervisor and employees. Though the Agency had a policy in place against discrimination and harassment, its response had shortcomings. Accordingly, under the particular circumstances of this case, we conclude that the Agency subjected Complainant to a hostile work environment based on his race and that it failed to take appropriate action that would have insulated it from liability.
Reprisal
The Commission next addresses the claim of reprisal. The anti-retaliation provisions of the discrimination statutes make it unlawful to discriminate against an individual because the individual has participated in or opposed any practice made unlawful under the employment discrimination statutes. In the present case, Complainant can initially establish a prima facie case of reprisal by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Corp. v. Waters, 438, U.S. 567, 576 (1978). The burden then shifts to the Agency to produce a legitimate, nondiscriminatory reason for taking the disputed action. See McDonnell Douglas v. Green, 411 U.S. 792 (1973). After the Agency provides its legitimate, nondiscriminatory reason, Complainant must show that the Agency's proffered reason is a pretext for unlawful discrimination.
Here, the Commission finds that Complainant had engaged in protected activity when he opposed the presence of the noose in the workplace. The Commission finds that the Agency retaliated against Complainant when MS-2 issued him the below standards ePOP. The Agency's articulated reason for issuing the ePOP to Complainant was that he failed to report the incident for 10 days and the Agency's Code of Conduct which required that harassment be "immediately" reported. We find the Agency's reason for issuing the ePOP to Complainant is pretextual and not believable for the reasons that follow.
The only employee who was issued an ePOP for not reporting the noose was Complainant. The Plant Manager stated in his affidavit that Complainant's supervisor was coached about the incident by his supervisor and that the coaching was recorded. However, there is no ePOP issued to Complainant's supervisor in the record regarding the noose incident nor is there any other type of writing corroborative of the Plant Manager's statements. The only ePOPs included in the record were three issued in August 2011, all by MS-2.2 One was issued to Complainant's supervisor for failure to report an employee work injury until the following day. It was not issued for untimely reporting of harassment. Similarly, an ePOP was issued to an employee for failure to report his injury to a supervisor. The third was issued to Complainant for failure to report harassment in a timely manner.
MS-2 stated that the noose incident was the first time he had been confronted with the issue of the untimely reporting of harassment. He made this statement to explain his first-time issuance of an ePOP for harassment. We find his explanation contrived and disingenuous. There is no documentary evidence that an ePOP was ever issued by the Agency to anyone other than Complainant for failing to report harassment. The ePOPs appeared to be designed to be issued for work injury and observance of safety measures. Our finding is consistent with the statement of the YOS who connected issuance of ePOPs to observance of work safety measures and work injuries. There was no witness called from the Agency's human resources department, for example, who could have provided evidence that ePOPs were also issued for failure to report alleged harassment which could have supported management explanation about the issuance of ePOPs.
We also conclude that the issuance of an ePOP was an adverse action. Although MS-2 stated that an ePOP did not affect an employee's job or pay, the Plant Manager described the ePOP as the first step in discipline. Complainant also stated that the ePOP could affect his upward mobility. In addition, the record reveals that Complainant's ePOP remained in the Agency database as late as September 2012 and it is not established who had access.
In sum, we find that the Agency subjected Complainant to a hostile work environment based on his race and retaliated against Complainant for engaging in protected activity.
Remedies
Complainant alleged loss as a result of the discrimination and requested relief for the harm suffered. Pursuant to Section 102(a) of the Civil Rights Act of 1991, a complainant who establishes a claim of unlawful discrimination may receive compensatory damages for past and future pecuniary losses (i.e., out-of-pocket expenses) and non-pecuniary losses which are losses not subject to precise quantification (e.g., emotional pain, suffering, mental anguish, inconvenience, loss of health). Non-pecuniary compensatory damages are designed to remedy the harm causes by the discriminatory event, rather than punish the Agency for the discriminatory action. Based on our finding of discrimination and Complainant's allegations of loss related to the discrimination, the Agency shall, consistent with the Order below, conduct a supplemental investigation on compensatory damages.
CONCLUSION
The Agency's decision finding no discrimination is REVERSED and the Agency shall take action as ordered below.
ORDER
The Agency shall take and complete the following actions within 120 calendar days that this decision becomes final:
1. The Agency shall conduct a supplemental investigation regarding compensatory damages, including providing Complainant with an opportunity to submit evidence of pecuniary and non-pecuniary damages. Within thirty (30) days of the date this decision becomes final, the Agency shall provide Complainant with a notice of his right to submit evidence (pursuant to the guidance given in Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993) and EEOC Enforcement Guidance: Compensatory and Punitive Damages Available Under � 102 of the Civil Rights Act of 1991 (July 14, 1992) (available at eeoc.gov). The Agency shall inform Complainant in its notice to submit evidence in support of his claim for compensatory damages within forty-five (45) calendar days of the date he receives the Agency's notice. The Agency shall complete the investigation and issue a final decision appealable to the EEOC determining the appropriate amount of damages within 120 days after this decision becomes final.
2. The Agency shall provide proof in the form of affidavit(s) that the ePOP and any reference to Complainant's failure to report the noose incident are removed and expunged from the database and from all Agency records.
3. The Agency shall consider taking appropriate disciplinary action against the Agency official responsible for the retaliation. If the Agency decides to take disciplinary action, it shall identify the action taken. It the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. Training is not considered discipline.
4. The Agency shall provide eight hours of training to Complainant's supervisor who was the Yard Maintenance Foreman, the Maintenance Supervisor who was the supervisor over Yard Maintenance at the New Johnsonville Fossil Plant and the Plant Manager regarding unlawful workplace harassment and retaliation. Eight hours of workplace harassment training shall also be provided to workers in the involved unit, the Fossil Power Group, Maintenance, New Johnsonville Fossil Plant.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation that the corrective action has been implemented.
POSTING ORDER (G0914)
The Agency is ordered to post, at its New Johnsonville Fossil Plant, New Johnsonville, Tennessee, copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. Filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (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
May 14, 2015
__________________
Date
1 In Van Druff, although no discrimination was found, the Commission directed the Agency to expunge references to hours of work devoted to EEO activity in complainant's progress review.
2 It is not clear when an ePOP would have been prepared or received by an employee. The three ePOPs in the record are dated for the date of the incidents but they also include information that would have occurred after the incident date, indicating that the ePOPs were prepared after the incident's occurrence.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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