0720140036
09-22-2015
Complainant, v. Loretta E. Lynch, Attorney General, Department of Justice (U.S. Marshals Service), Agency.
Complainant,
v.
Loretta E. Lynch,
Attorney General,
Department of Justice
(U.S. Marshals Service),
Agency.
Appeal No. 0720140036
Hearing No. 520-2011-00427X
Agency No. USMS201100215
DECISION
Following its June 25, 2014, final order, the Agency filed a timely appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405(a). On appeal, the Agency requests that the Commission affirm its rejection of an EEOC Administrative Judge's (AJ) finding of 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 Agency also requests that the Commission affirm its rejection of the relief ordered by the AJ. For the following reasons, the Commission REVERSES the Agency's final order and REMANDS the matter in accordance with the ORDER below.
BACKGROUND
The record reveals that complained worked as a U.S. Deputy Marshall in Dallas, Texas for almost three years, prior to his resignation in July 2006. Prior to his resignation, Complainant sought, and received leave to care for his mother, who was ill and lived in New York. While working in Dallas, Complainant has also sought a transfer to the New York Office, but that request was denied, leading to his resignation.
Complainant thereafter filed a prior EEO complaint alleging he was discriminated against on the basis of his sex when he was denied a transfer. Complainant withdrew the complaint in July 2008. Complainant's supervisors were aware of this prior EEO complaint at the time the events in the instant complaint occurred.
On August 3, 2008, Complainant requested reinstatement into his former position at the Dallas, Texas office. As part of the process for reinstatement, the Agency's Human Resources Department forwarded a blank questionnaire to Complainant's former supervisor for completion. The record reveals that Complainant's former supervisors, the U.S. Deputy Chief Marshall, and the Supervisory Deputy U.S. Marshall jointly discussed and drafted the questionnaire. The Agency's General Counsel, who represented the Agency in this matter, as well as the prior EEO complaint, was also consulted on the questionnaire.
Complainant's former supervisors completed the questionnaire, and did not present Complainant positively. In essence, Complainant's former supervisors did not recommend the approval of Complainant's reinstatement request because he they believed he had conducted himself inappropriately on several occasions during his employment. Specifically, the supervisors wrote that Complainant had demanded free lunch from a restaurant as a law enforcement officer; rode a motorcycle wearing an Agency raid jacket; made inappropriate traffic stops while not on official business; and wore inappropriate clothing to the office.
Having never received a response to his request for reinstatement, Complainant contacted a member of Congress for assistance. On January 5, 2011, Complainant learned that his request for reinstatement had been denied.
On or about February 22, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (association with a person with a disability)1 and reprisal for prior protected EEO activity when, on January 5, 2011, he learned his request for reinstatement as a Deputy United States Marshal was denied.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The AJ held a bifurcated hearing on March 18-19, 2013, and issued an interim decision on liability on June 7, 2013. Therein, the AJ found Complainant established a prima facie case of retaliation. The AJ also found the supervisor's testimony was not credible, and determined the Agency's reason for denying Complainant's reinstatement request was a pretext for retaliation.
In making this finding, the AJ based his decision on the credibility of witnesses. Notably, the AJ found management's testimony was "nothing more than a well-rehearsed and well-scripted concerted attempt to disguise [their] knee-jerk reaction that, after having filed an EEO complaint against the office, under no circumstances would the Complainant be permitted to return to work at the Dallas, Texas office." The AJ thereafter cited several examples of testimony which were not reliable or credible. Most notable was the fact that despite testifying that Complainant displayed unprofessional behavior in several instances, all documented performance ratings and supervisory evaluations revealed that Complainant performed successfully, and was even recommended for promotion to a supervisory position. The AJ was also disturbed by the U.S. Deputy Chief Marshall's suggestion that he did not have a problem with Complainant returning to the Agency as a U.S. Marshall; he only objected to him serving in the Dallas District Office. Finally, the AJ was concerned that upon learning of Complainant's reinstatement request, the supervisor contacted the Agency's General Counsel, who was familiar with Complainant's EEO activity, in order to seek advice on the questionnaire. This was so even though testimony revealed reinstatement requests do not normally require more than administrative approval.
In sum, the AJ found Complainant was subjected to retaliation when his request for reinstatement was denied. The AJ found that Complainant was not subjected to discrimination on the basis of his association with a person with a disability as there was insufficient credible evidence that Complainant's supervisors considered Complainant's prior attendance when making its decision.
A hearing on damages was scheduled and on June 27, 2013, and Complainant filed a Demand for Damages. Therein, Complainant requested reinstatement, back pay, and attorney's fees and costs. Complainant did not request compensatory damages.
The Agency responded by submitting its position on damages and requested that a limited hearing on damages be held. The Agency contended that reinstatement was not appropriate because Complainant had allegedly committed post employment misconduct, displayed a lack of candor during the hearing, and was allegedly forced to resign his most recent position. If the AJ did reinstate Complainant, it argued that Complainant should only be placed back into a pool of available reinstatement eligible employees, but still have to undergo security, physical fitness, medical and firearms qualifications. Finally, the Agency asserted that Complainant had failed to mitigate his damages.
On June 28, 2013, the AJ cancelled the damages hearing. Then, on August 30, 2013, the AJ issued a new order scheduling a damages hearing for October 7, 2013. However, following a September 9, 2013 telephone conference between the parties, the AJ again cancelled the scheduled damages hearing and closed the record.2
On May 16, 2014, the AJ issued a Memorandum Hearing Decision addressing liability, and a separate decision on Equitable Relief and Damages. Therein, the AJ disagreed with the Agency's arguments regarding the need for a hearing on damages, and ordered that Complainant be immediately reinstated into his former position with retroactive benefits, and back pay from February 13, 2009 (the date the questionnaire was issued), until the date of his actual reinstatement.
The AJ also addressed the Agency's arguments concerning equitable relief, and whether a hearing to address these matters was appropriate. The AJ noted that he was "without jurisdiction to conduct a hearing" regarding the alleged post-employment misconduct. Furthermore, the AJ noted he was likewise without jurisdiction to determine whether Complainant could successfully maintain his firearms and other necessary certifications. (AJ Decision on Remedies p. 4, fn. 2).
The AJ's Decision on Equitable Relief and Damages also referenced that Complainant had made a request for attorney fees. However, the AJ declined to issue a decision on a specific amount of attorney fees because of the likelihood of further legal costs on appeal. Accordingly, the AJ ordered the Complainant to file a petition for attorney fees/costs with the Agency, and ordered that in the absence of any objection from the Agency, the attorney fees should be awarded within thirty days. Furthermore, he noted, "any objection(s) to the dollar amount contained within Complainant's petition for attorneys fees/costs shall be identified and excluded from actual payment as part of the Agency's final regulatory decision in this case which is subject to OFO appeal.3
The Agency subsequently issued a final order rejecting the AJ's finding that Complainant was subjected to reprisal. The Agency also contends the AJ erred in ordering reinstatement. As for the attorney fees, the Agency did not contest the hourly rate, but did state that some fees should be reduced as excessive or redundant, and a 30% across the board reduction should be imposed due to only partial success.
The Agency appealed the AJ's finding that it retaliated against Complainant, and Complainant filed a cross appeal of the AJ's finding that he was not discriminated against on the basis of disability.
CONTENTIONS ON APPEAL
Agency Appeal Brief
On appeal, the Agency contends that the AJ failed to use the proper reprisal standard set forth in University of Texas Southwestern Medical Center v. Nassar, 133 S.Ct, 2517 (2013). Applying this "but for" standard, the Agency argued there were a myriad of other reasons that caused the denial of reinstatement. The Agency argues that the AJ's credibility findings were clearly erroneous and unsupported by the evidence. Specifically, the Agency contended that the AJ's finding that management was not credible is not supported by the record, as contemporaneously recorded notes established Complainant had performance problems. Further, the fact that Complainant received "successful" performance ratings, within grade increases and recommendations for promotion were not determinative given other testimony which revealed Complainant was a marginal employee.
The Agency also argued that the AJ erred in not holding a hearing on damages following the bifurcated portion on liability. It contends that had the AJ held a hearing, it could have presented evidence which established that reinstatement was not an appropriate remedy because of evidence that Complainant engaged in misconduct after his resignation in 2006, and again in 2013, while employed with an Agency contractor. The Agency also asserts that Complainant showed a lack of candor during his testimony during the liability phase of the hearing, which also raises questions about his fitness for reinstatement. Finally, the Agency points out that even if reinstatement is the appropriate remedy, it is not unconditional. Specifically, Complainant should only be placed back into the available pool of candidates, and still have to undergo background, medical, and firearms qualifications.
With respect to the attorney fee demand, the Agency states that fees should be reduced by 30% to reflect partial success on the two claims brought in the complaint. Furthermore, the Agency maintains that many of the entries are excessive or duplicative.
Complainant's Response to Agency's Appeal
In its response, Complainant asserts that the AJ's decision is supported by substantial evidence, and the credibility determinations should be given great deference. Furthermore, he contends that Nasser does not apply to federal sector discrimination complaints, and that he established that the Agency's reason for denying him reinstatement was a pretext for retaliation.
With respect to the AJ's remedial order, Complainant maintains that the AJ did not err in declining to hold a hearing on damages, as there was lengthy briefing conducted on the matter. He contends that the arguments presented here on appeal have already been resolved by the AJ, and they should not be considered again on appeal.
With respect to reinstatement, Complainant asserts that if he is only placed back into the pool of available candidates, he is susceptible to further acts of reprisal. Furthermore, evidence submitted to the AJ establishes that Complainant recently underwent a background check and obtained a security clearance while he working for an Agency contractor. Complainant asserts that this appeal is not the proper method to challenge whether Complainant has mitigated his back pay; rather, Complainant asserts this should be done during the compliance phase.
Complainant further argues that the after-acquired evidence rule does not apply here, as the alleged misconduct did not occur while he was employed, and had no connection to his former employment. Furthermore, Complainant disputes the reliability of the Agency's assertions regarding the alleged misconduct claims. As for attorneys' fees, Complainant seeks payment of the full amount as set forth in the Fee Petition.
Complainant's Brief in Support of Appeal of AJ finding of No Disability Discrimination
In his complaint, Complainant alleged that the Agency denied reinstatement because of Complainant's association with a person with a disability; his mother. On appeal, Complainant asserts that the Agency referred to Complainant as "undependable" because of his attendance issues and remarked how the frequent absences took a toll on the office's resources in the questionnaire. Accordingly, Complainant maintains the AJ erred when he found no disability discrimination, and asks that we make a finding in his favor.
Agency's Response to Complainant's Appeal of AJ finding of No Disability Discrimination
In response, the Agency contends that Complainant failed to establish a prima facie case of disability discrimination because he failed to establish that caring for his mother was a "determining factor" in the denial of his reinstatement request. Rather, the Agency maintains that it articulated legitimate, nondiscriminatory reasons for its action which Complainant failed to establish were a pretext for discrimination.
ANALYSIS AND FINDINGS
Liability
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
After a review of the record, we find the AJ's finding of retaliation, as well as the finding of no disability discrimination, are supported by substantial evidence in the record. The record reveals that soon after Complainant withdrew his first EEO complaint, Complainant's former supervisors drafted a negative recommendation in response to Complainant's request for reinstatement. The AJ found that the testimony regarding the reasons for the negative recommendation provided at the hearing by Complainant's former supervisors was not credible, and was in sharp contrast to the documented performance and promotion records completed during his service.
Although the Agency contends these credibility findings are erroneous, we cannot agree. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (November 9, 1999). We find no reasons to alter the AJ's disability discrimination finding based on the AJ's credibility determinations.
Furthermore, the Agency contends the AJ erred by failing to apply Nassar. However, we remind the Agency that in the Commission's view, the "but for" standard ("but for" its retaliatory motive, the employer would not have taken the adverse action, meaning that the retaliatory motive made a difference in the outcome) does not apply to retaliation claims by federal sector applicants or employees under Title VII or the ADEA because the relevant federal sector statutory language does not employ the "because of" language on which the Supreme Court based its holdings in University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517 (2013) and Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009) (requiring "but for" causation for ADEA claims brought under 29 U.S.C. � 623). Petitioner v. Dept. of Interior, EEOC Petition No. 0320110050 at fn. 6 (July 16, 2014)(Clarifying Commission's method of proof in a federal sector retaliation complaint).
These federal sector provisions contain a "broad prohibition of 'discrimination' rather than a list of specific prohibited practices." See Gomez-Perez v. Potter, 553 U.S. 474, 487-88 (2008) (holding that the broad prohibition in 29 U.S.C. � 633a(a) that personnel actions affecting federal employees who are at least 40 years of age "shall be made free from any discrimination based on age" prohibits retaliation by federal agencies); see also 42 U.S.C. � 2000e-16(a) (personnel actions affecting federal employees "shall be made free from any discrimination based on race, color, religion, sex, or national origin"). Petitioner v. Dept. of Interior, EEOC Petition No. 0320110050.
Based on the above, we reject the Agency's argument that Nassar applies to Complainant's retaliation claim. See Complainant v. Dept. of Homeland Security, EEOC Appeal No. 0720140014 (August 19, 2015); Complainant v. Dept. of Homeland Sec., EEOC Appeal No. 0720140037 (May 29, 2015); Complainant v. U.S. Postal Serv., EEOC Appeal No. 0720120041 (Mar. 12, 2015).
Remedies - Reinstatement
The Agency asserts, as it did in filings before the AJ, that reinstatement is not the appropriate remedy here and the AJ erred in failing to hold a hearing to address issues of alleged misconduct, which occurred subsequent to Complainant's employment and during the hearing itself. The Agency maintains that had the AJ held a hearing, he could have determined that the post employment misconduct prevented Complainant's reinstatement pursuant to the After-Acquired evidence rule.4 As evidence of the misconduct, the Agency provides a letter from the former Chief Deputy U.S. Marshall, Eastern District of NY, which states that Complainant had misrepresented himself as a U.S. Marshall after his resignation in 2006. The Agency also contends that Complainant was forced to resign in lieu of termination from his most recent employer, a private Agency contractor. Finally, the Agency also claims that Complainant displayed a lack of candor at the hearing.
However, we find the evidence submitted by the Agency to support these assertions is wanting. There is no evidence or testimony from anyone attesting to a forced resignation in lieu of termination from a private contractor. As for the letter and purported testimony of the former Chief Deputy U.S. Marshall, Eastern District of N.Y., we note that neither the letter, nor the testimony from the individual who wrote the letter, were admitted into evidence at the hearing because the AJ found the evidence irrelevant as to the issue of liability. Specifically, the Agency conceded that the letter was unknown to the responsible officials herein and was therefore not a basis for the denial of reinstatement. Furthermore, we find the letter and potential testimony unreliable and hearsay.
We note it is the Agency's burden to prove by clear and convincing evidence that Complainant would not have been reinstated even absent the retaliation. Based on the evidence before us, we find the Agency has not met its burden. As ordered by the AJ, Complainant should be reinstated to his former position subject to his security and background investigations.
We agree with the Agency's position that Complainant should undergo whatever necessary security investigations or firearm recertification he would have underwent had he received a favorable reference from his former supervisors. We do not find this is a departure from the AJ's order.
In his decision, the AJ noted that:
[i]n terms of relief in the form of retroactive reinstatement, the Complainant should be treated as any other U.S. Deputy Marshall who has been presently employed in his position since at least February 13, 2009. In order to discount the appearance of impropriety, involving the certification process applicable to Complainant, the Agency will do well to insure that the identified RMO's in this case, and the attorney of record in this matter are not involved in any aspect of the certification process.
The AJ also ordered that Complainant be reinstated with retroactive seniority, grade increases and other applicable employee benefits. We do not take this to mean Complainant should be reinstated without having to undergo whatever security and firearms certifications one would undergo had they received a favorable reference. The Agency submits an affidavit from the Assistant Chief, Office of Security Programs, who averred that due to the significant break in service since his initial favorable determination, Complainant would have to undergo an additional "Single Scope" background investigation. Accordingly, we find that Complainant should be subject to any security or firearms qualifications one would have to pass in order to be reinstated to a U.S. Marshall position after having received a favorable reference from their prior supervisor. Like the AJ, we remind the Agency of its continuing obligation to maintain a workplace free from discrimination, and direct that Complainant undergo these certifications without the involvement of the prior RMOs in this matter.
Attorney Fees and Costs
In his decision, the AJ ordered Complainant to file a petition with the Agency for fees and costs, and in the absence of any objections, ordered the Agency to pay Complainant's request in full. If the Agency objected to any portion, the Agency was permitted to exclude that amount and appeal the difference on appeal to OFO because it was clear the Agency would be filing an appeal.
On appeal, the Agency argues that the $74,771.53 attorney fee and costs request by Complainant should be reduced by 30%, and that certain fees be eliminated because they were excessive or were erroneously billed.
We note there is no attorney fee petition in the record, and we have no evidence of any final decision made on the amount of attorney's fees by the Agency. Accordingly, we are unable to make any determination as to the appropriateness of the fee petition or make an award of attorney's fees. We find the AJ should have calculated attorney fees in this case. Specifically, the MD-110 states, at 11-17 and 11-18 that:
When the decision-making authority, that is, the Agency, an administrative judge, or the Commission, issues a decision finding discrimination, the decision normally should provide, under the standards set forth above, for the Complainant's entitlement to attorney's fees and costs. The Complainant's attorney then must submit a verified statement of attorney's fees (including expert witness fees) and other costs, as appropriate, to the Agency or administrative judge within thirty (30) days of receipt of the decision and must submit a copy of the statement to the Agency. � 1614.501(e)(2)(i). Furthermore, where the Commission finds discrimination in a case in which the Agency takes final action under � 1614.110(a), the Commission will remand the case to the Administrative Judge for a determination of attorney's fees. MD-110 at 11-17, fn. 5.
The Agency may respond to the statement of fees and costs within 30 days of its receipt. If the Agency contests the fee request, it must provide equally detailed documentation in support of its arguments. Id...The Administrative Judge or Agency will issue a decision determining the amount of attorney's fees or costs due within 60 days of receipt of the statement and affidavit. 29 C.F.R. � 1614.501(e)(2)(ii)(A). The decision should provide a written explanation of any award of fees and costs, including, as appropriate, findings of fact, analysis, and legal conclusions. 29 C.F.R. � 1614.501(e)(2)(ii)(A). The decision must include a notice of right to appeal to the Commission.
The AJ in this case found Complainant was entitled to attorney fees but did not make an award, deferring to OFO because of the likelihood of an appeal. However, as noted, there is neither an attorney fee petition, nor a decision on attorney's fees in the record and therefore, we find the matter is not before us at this time. We likewise note there is no evidence of a separate appeal filed with the Commission on an attorney fee award in this case. Accordingly, we find this matter should have been addressed by the AJ and therefore remand it to the AJ for a determination of attorney's fees. To the extent that Complainant has incurred additional fees due to the processing of the instant appeal, he may include those in his petition.
CONCLUSION
Accordingly, we find that the AJ's determination that Complainant was subjected to retaliation when he was denied reinstatement is supported by substantial evidence. However, we remand the matter for further processing in accordance with this decision and the ORDER below.
ORDER (D0610)
The Agency is ordered to take the following remedial action:
1. The Agency shall immediately offer to reinstate Complainant to his former position as a U.S. Marshall at the Dallas, Texas office, retroactive to February 13, 2009 subject to successfully completing all necessary investigations and certifications which are required for his reinstatement. Complainant shall receive retroactive seniority, grade increases and other applicable benefits as compared to a similarly situated U.S. Marshal. The offer shall be made in writing. Complainant shall have 15 days from receipt of the offer to accept or decline the offer. Failure to accept the offer within 15 days will be considered a declination of the offer, unless the individual can show that circumstances beyond her control prevented a response within the time limit.
2. The Agency shall determine the appropriate amount of back pay, with interest, and other benefits due Complainant, pursuant to 29 C.F.R. � 1614.501, no later than sixty (60) calendar days after the date this decision becomes final. The Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to the Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. The Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision."
3. The issue of attorney's fees is REMANDED to the Hearings Unit of the New York District Office. The Agency is directed to submit a copy of the complaint file and attorney fee petition to the EEOC Hearings Unit within fifteen (15) calendar days of the date this decision becomes final. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file and attorney fee petition has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge must be assigned in an expeditious manner to further process the issue of attorney's fees in accordance with the regulations.
4. Within 120 days, the Agency shall provide a minimum of three (3) hours EEO training, to supervisors and managers at the facility with special emphasis on the management's obligations to refrain from illegal acts of retaliation.
5. Within 120 days, the Agency shall consider taking appropriate disciplinary action against the responsible management officials. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure date(s).
6. The Agency shall post a notice in accordance with the paragraph below.
7. 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 of the Agency's calculation of back pay and other benefits due Complainant, including evidence that the corrective action has been implemented.
POSTING ORDER (G0914)
The Agency is ordered to post at its Dallas, Texas facility 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 (M0815)
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 Chap. 9 � VII.B (Aug. 5, 2015). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 22, 2015
__________________
Date
1 This case arose before January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008, which made a number of significant changes to the definition of disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. Because this matter occurred in 2008, the Commission will use the analytical framework as it existed before the enactment of the ADA Amendments Act of 2008, to determine whether Complainant is an individual with a disability.
2 There is no record of a transcript from the telephone conference proceedings.
3 The Petition for Attorney's Fees is not contained in the record.
4 After-acquired evidence does not bar the Agency's liability for having engaged in unlawfully discriminatory conduct, however, it bears upon the remedy afforded to the Complainant. See McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995). The Court in McKennon stated that where an employer seeks to rely upon after-acquired evidence of wrongdoing to limit the amount of damages, it must first establish that the wrongdoing was of such severity that the employee in fact would have been terminated on those grounds alone had the employer known of the conduct at the time of the discharge. See id.
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07-2014-0036
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0720140036