0120120157
03-24-2015
Complainant, v. Penny Pritzker Secretary, Department of Commerce, (National Oceanic and Atmospheric Association) Agency.
Complainant,
v.
Penny Pritzker
Secretary,
Department of Commerce,
(National Oceanic and Atmospheric Association)
Agency.
Appeal No. 0120120157
Agency No. 11-54-00027
DECISION
The Commission, pursuant to 29 C.F.R. � 1614.405, accepts Complainant's appeal from the Agency's September 7, 2011 decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission AFFIRMS in part and REVERSES in part.
ISSUE PRESENTED
The issue presented is whether Complainant has shown by a preponderance of the evidence that the Agency discriminated against him based on his age and reprisal when it issued him a letter of counseling (LOC).
BACKGROUND
Complainant worked for the Agency as a Meteorological Intern for the Agency's National Weather Service Forecast Office (NWSFO), National Oceanic and Atmospheric Administration in Chanhassen, Minnesota.
In his complaint, dated November 22, 2010, Complainant alleged that the Agency discriminated against him on the bases of age (50) and reprisal for prior protected EEO activity when on October 13, 2010, his supervisor (S1) issued him an LOC. Complainant alleged that the LOC was issued in direct retaliation against him by S1, the Science and Operations Officer (SOO) and the Warning Coordination Meteorologist (WCM), who participated in a hearing on July 19, 2010 on his prior discrimination claim concerning a nonselection.
Following an investigation of the complaint, Complainant was provided with the Report of Investigation (ROI) and was notified of his right to request a hearing or to an Agency decision. Complainant requested an immediate Agency decision.
In its decision finding no discrimination, the Agency first determined that Complainant failed to establish a prima facie case of age-based disparate treatment. In so finding, the Agency noted that Complainant had failed to show that similarly situated employees who were younger than he was and who had engaged in similar conduct were not issued an LOC. The Agency also determined that Complainant had also not shown that age played any role in the action that it had taken in issuing the LOC. Regarding the claim of reprisal, the Agency found that Complainant had established a prima facie case. In so finding, the Agency determined that the LOC was issued about three months after the protected activity and that the Agency officials responsible for issuance of the LOC had participated in a July 2010 hearing concerning Complainant's prior discrimination complaint.
The Agency also found that Complainant had failed to show that he was subjected to a hostile work environment because he had failed to show that he was subjected to severe and pervasive conduct based on his age or reprisal and which affected a term or condition of his employment or unreasonably interfered with his work environment.1
The Agency concluded also that it had articulated a legitimate, nondiscriminatory reason for issuance of the LOC. The Agency further concluded that Complainant had failed to show that its actions were pretextual. The Agency noted that Complainant had offered nothing more than a general belief that he was discriminated against and that his subjective belief was insufficient to establish pretext.
The record contains the LOC. The LOC reveals that Complainant had been issued the LOC because of conduct issues which were impacting team work and customer service. In it, S1 explained that Complainant was disrespectful and argumentative; created an uncomfortable work environment; and had a problem with authority. S1 noted that Complainant was required to demonstrate courtesy and respect for other points of view and to be tactful. S1 stated in the LOC that Complainant's method of communication did not demonstrate courtesy, tact, or respect for authority. He identified specific incidents regarding Complainant's behavior and possible insubordination. In the LOC, S1 also specifically identified the Lead Forecaster, the Service Hydrologist and Operations Program Leader/Meteorologist (OPL) as staff who had been subjected to Complainant's inappropriate behavior and who had reported incidents to him.
Complainant has engaged in prior EEO activity, having initiated EEO Counselor contact and having filed formal complaints in 2006, 2008, and 2009. In the present complaint, Complainant initiated EEO contact in October 2010, and filed his formal complaint in 2010.
CONTENTIONS ON APPEAL
Complainant makes no arguments on appeal, other than submitting his Rebuttal Statement to the ROI.
The Agency argues that Complainant cannot establish a prima facie case of discrimination, retaliation, or harassment. The Agency also argues that even assuming that Complainant can establish a prima facie case of discrimination, retaliation, or harassment, the Agency has articulated legitimate, nondiscriminatory reasons for its action, and Complainant has not shown that its reasons were pretextual.
ANALYSIS AND FINDINGS
In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a Title VII case alleging discrimination is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation cases).
First, Complainant must establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802.
Next, the agency must articulate a legitimate, nondiscriminatory reason for its actions. 2 Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency is successful, then Complainant must prove, by a preponderance of the evidence, that the legitimate reason proffered by the agency was a pretext for discrimination. Id. at 256. 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).
As with the establishment of a prima facie case, proof of pretext will vary with each employment situation at issue. See Furnco Construction Corp. v. Waters, 438 U.S. 567, 580 (1978). Employers generally have broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Burdine, 450 U.S. at 259.
Because this is an appeal from a decision issued without a hearing, the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a).
Upon review of the record, we find that Complainant has failed to show by a preponderance of the evidence that the Agency discriminated against him on the basis of his age. Complainant has not shown that others not in his age group were treated more favorably than he was regarding discipline. We also find that Complainant has failed to show that he was subjected to a discriminatorily hostile work environment. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). We find, however, that the Agency unlawfully retaliated against Complainant for prior protected activity when it issued the LOC.
In finding that Complainant was subjected to unlawful reprisal, the Commission first addresses whether Complainant has established a prima facie case of reprisal. S1, the Meteorologist in Charge, issued the LOC to Complainant on October 13, 2010. Complainant had engaged in prior protected activity when he alleged in a complaint that he was not selected for a position in November 1998 for discriminatory reasons. S1 was part of the decision-making in Complainant's nonselection and participated in the hearing which was held in July 2010, concerning the nonselection, the outcome of which remained pending at the time of the issuance of the LOC. Accordingly, Complainant has demonstrated that he was subjected to an adverse employment action by S1; that the adverse action occurred about three months after engaging in protected activity; and that S1 knew of the prior protected activity, having been one of the Agency officials named in the prior complaint. These circumstances therefore support an inference of discrimination.3
Because Complainant has established a prima facie case, the Agency has to rebut the presumption established in the prima facie case by articulating a legitimate, nondiscriminatory reason for its actions. The Agency's burden of production is not onerous but it must nevertheless provide a specific, clear, legitimate and individualized explanation that provides an opportunity for Complainant to satisfy his ultimate burden of proof of pretext. Lorenzo v Dep't of Defense, EEOC Request No. 05950931 (Nov. 6, 1997). Here, the Agency has articulated reasons for its action in issuing the LOC. The LOC was issued because of conduct issues and for impeding team work and customer service in the office. The LOC described Complainant as disrespectful, argumentative, and resistive to authority. S1 and other Agency provided affidavits which cited instances, upon which the Agency relied in justifying the issuance of the LOC, of Complainant's alleged misconduct. We find further, however, that although the Agency has articulated legitimate, nondiscriminatory reasons for its actions, its reasons were pretextual.
It is clear from the record that Complainant is an outspoken employee who was not timid about voicing his opinion. We find, however, that the Agency used Complainant's outspokenness to mask its real reason for disciplining Complainant and identified incidents involving Complainant as pretext for issuing the discipline after Complainant engaged in protected activity which named S1. A Title VII violation is established when a complainant demonstrates, as here, that reprisal was a motivating factor.
July 30, 2010 incident
As an example of poor teamwork in the LOC, the Agency identified a July 30, 2010 electronic mail that Complainant sent to the OPL in which Complainant questioned the OPL's authority and told her to stop giving additional duties. The LOC reflects that the WCM had to counsel Complainant.
Concerning this incident, Complainant stated that he was not questioning OPL's authority but that he was correcting the OPL's false claim of having worked 50 Hydro-Meteorological (HMT) shifts during the 2010 calendar year. He also stated that he was also inquiring why the OPL was assigning him additional work. In so doing, Complainant stated that he pointed out examples of efficient use of time and human resources to complete work on "COOP" stations in a timely and cost effective manner. He stated that he also mentioned how a grueling HMT work schedule benefited and minimized the OPL's work. Complainant stated that he asked the OPL to be considerate of the current HMTs/Intern workload because the HMTs/Intern were already tasked with handling many of the OPL's responsibilities and workload. Complainant noted that the OPL was not his supervisor.
S1 did not witness the incident and there is no affidavit in the record from the OPL. Neither is there any information in the record why the OPL's affidavit was not obtained. Contrary to S1's statement in the LOC that the WCM had counseled Complainant concerning this incident, there is no evidence that the WCM, whose affidavit is in the record, did so. The WCM also does not mention or provide any information concerning this incident.
August 16, 2010 incident
The August 16, 2010 incident concerned a tornado warning. The LOC indicated that when the Lead Forecaster decided that all interviews regarding the Lakeville tornado would be handled by her, Complainant became belligerent and told a media person that he was not allowed to talk about the tornado. According to the LOC, Complainant also told the caller that he was not allowed to discuss why the tornado came without warning. The LOC also indicated that Complainant accused the Lead Forecaster of trying to cover up the fact that there was no tornado warning.
In his affidavit, Complainant stated that after arriving for his shift, he was not briefed by the Lead Forecaster or management regarding a missed tornado warning or told that he was to direct all calls to the Lead Forecaster. He stated that he received a call from a law enforcement official concerning why no tornado sirens had gone off before a tornado struck. Complainant explained that he determined in checking data that no tornado warning had been issued. The caller asked why the tornado warning had not been issued and Complainant told him that he did not know why because the event had occurred before his shift began. Complainant stated that after ending the call, the Lead Forecaster received a call from the media inquiring about the tornado. After the call, the Lead Forecaster told him that all media calls pertaining to the tornado were to be referred to her. Complainant stated that he discussed the matter with the Lead Forecaster and that after she explained her rationale concerning the missed event, he routed all media calls to the Lead Forecaster. He denied telling a media person that he was not allowed to talk about the event. Complainant also denied accusing the Lead Forecaster of trying to cover up the missed tornado warning.
The SOO, who was supervised by S1, stated in his affidavit that the Lead Forecaster had told Complainant that she was to speak to any callers about the warning and that Complainant became upset and argued that he was being banned from speaking to the media. He stated that he had no motive to report Complainant to S1 nor was he asked by S1 to keep an eye on Complainant. He stated that if he noticed any conduct unbecoming of any employee, he would inform management. The SOO did not identify anyone else that he had reported. His August 16, 2010 electronic mail to S1 reporting Complainant's misconduct came in the month following the discrimination hearing in which he was named by Complainant as one of the discriminating officials in Complainant's nonselection.
The record does not establish that Complainant was briefed about why a warning was not given and that he knew that only the Lead Forecaster would handle calls from the media. The record established that not all inquiries were always handled by one person in all circumstances. The record also does not establish that Complainant told a caller from the media that he could not discuss the matter with them. S1, who did not witness the incident, reports only second hand information from the Lead Forecaster concerning her version of what happened concerning the tornado incident. Although the Lead Forecaster provided a statement contained in the record, the statement was not sworn. There is no explanation in the record why she did not provide an affidavit, although she could have provided first hand information as the other actor involved in an incident which contributed to the issuance of the LOC.
September 4, 2010 incident
Also identified as indicative of poor teamwork in the LOC was a September 4, 2010 electronic mail in which Complainant told the OPL that he would not help out with SAWRS/LAWRS visits because he received a negative comment in his performance appraisal. The LOC noted that this comment impacted on the office's performance, bordered on insubordination and did not demonstrate teamwork.
The Commission finds that the request was a voluntary task and, as such, Complainant did not have to volunteer. Stating that Complainant's desire not to help bordered on being insubordinate was disingenuous because it was a voluntary activity. Further, Complainant's statement is uncontradicted that he declined volunteering because his previous effort was not appreciated by NWSFO management and, also, he was penalized in his 2008-2009 performance review, for his work on that task. Complainant's 2009 evaluation is consistent with Complainant's statement that he was criticized for his volunteering to assist with the LAWRS visit.
The OPL did not provide any statement in the ROI concerning this incident or Complainant's explanation. Further, neither S1 nor any other Agency official has contradicted Complainant's statements that the task was not a requirement of his position but voluntary. Also, in his rebuttal to the LOC and in his affidavit, Complainant stated that as an employee, he was willing to go above and beyond the call of duty and that he had volunteered for and accomplished numerous extra duties over his 18 years with the Agency, worked hundreds of hours of outreach, thousands of hours of overtime, and completed hundreds of training modules, in addition to his required duties.
September 24, 2010 incident
The LOC identified an incident on September 24, 2010 concerning a flooding incident in which Complainant engaged in a loud, verbal exchange with the Service Hydrologist over data points and forecast information. S1 stated in the LOC that the SOO had described Complainant's conduct as an outburst. S1 also stated in the LOC that the SOO told him that the River Forecast Center (RFC) staff asked for quiet because Complainant was impacting the RFC staff's performance. The LOC also noted that later on the same day, Complainant raised his voice about dam break manuals and this conduct, according to the LOC, bordered on insubordination and was not acceptable.
The SOO stated in his affidavit that he heard an outburst from within his office. He heard Complainant being very loud with the Service Hydrologist while he was on a conference call and sent S1 an electronic mail describing what he had heard. He stated that the Service Hydrologist was not yelling but loud enough that he could hear her. The SOO also stated that she was not as loud as Complainant.
The record also contains the affidavit of a Meteorologist, a colleague of Complainant. He stated that both the Service Hydrologist and Complainant were yelling at each other and both were irate with each other. He stated that the incident started when Complainant was on the telephone talking and the Service Hydrologist overheard Complainant's conversation and disagreed with him. The caller wanted to know if the river had crested and Complainant did not have that knowledge. The Meteorologist stated that the Service Hydrologist thought that Complainant needed to know more about the flooding and Complainant told her that was not his job and she was the Hydrologist and had more information related to the flooding.
The record contains a statement from the Senior Meteorologist who sometimes supervised Complainant as the shift supervisor. He stated that a reporter called to obtain information about flooding because there was record flooding in September because a river gauge was out of service and there was no reading on the river. The Senior Meteorologist stated that Complainant asked the Service Hydrologist if there was any information about the river. She told him to use a program with which Complainant was not familiar and Complainant could not provide the information to the reporter.
Regarding this incident, the Service Hydrologist provided no statement for the record. Complainant's statement that he was not knowledgeable about the incident is supported by the Senior Meteorologist. In addition, we find that both the Service Hydrologist and Complainant were engaged in a heated exchange and yelling at each other. There is no evidence that the Service Hydrologist was disciplined.
We find that the incidents identified in the LOC were mere pretext. Further, in issuing the discipline, we also find that the Agency failed to follow its own Resource Guide and there is no explanation why S1 did not do so. The NOAA Supervisory Resource Guide explains that when a situation involves misconduct, the manager had to first ask whether any discipline was appropriate, that is, whether any level of disciplinary action could be supported by sufficient facts to pass muster as justifiable before an outside party. The Resource Guide discloses also that in determining the facts, the employee was always to be interviewed. In the instant case, there is no evidence that S1 interviewed Complainant concerning any of the identified incidents which he used in support of his decision to discipline Complainant.
As we found earlier, Complainant was not one who was hesitant to express his opinion or to question authority. No mention is made in Complainant's 2009 or 2010 performance evaluation that Complainant had exhibited belligerent, combative, and disrespectful behavior or that he was not a team worker, although S1 stated in his affidavit that he had supervised Complainant for four years and Complainant's disrespectful behavior had remained unchanged. The Commission notes that S1, the SOO and the WCM who were named discriminating officials in a prior complaint expressed negative opinions about Complainant. Their portrayal is, however, belied by Complainant's personnel evaluations. The 2009 evaluation notes that Complainant does a "very good job" with outreach and gave multiple media interviews and assisted with tours. The 2010 evaluation described him as assisting with training two college students and elementary school students and providing training to student volunteers. The 2010 evaluation also lauds Complainant for providing very good support during high impact events and during a flooding in August. Describing Complainant's work in Agency outreach as good in both evaluations is contrary to management statements that Complainant did not get along well with others. The evaluations also disclose that Complainant did a good job keeping up with the public forecast and keeping staff informed, and a nice job with the Newsletter article. The 2009 evaluation's only criticisms were with regard to LAWRS, which Complainant explained was voluntary, and concerned Complainant needing to do a better job completing training and adhering to deadlines.
Although there were statements that Complainant did not get along with much of the staff, the Senior Meteorologist also stated that, although Complainant was opinionated and that that attitude sometimes caused problems, Complainant also got along with his co-workers.
The Commission therefore finds that the Agency discriminated against Complainant on the basis of reprisal. Although we have found as we have, the Commission reminds the parties that the retaliation provisions of discrimination statutes do not immunize an employee from appropriate discipline, absent unlawful discrimination.
CONCLUSION
The Agency's decision finding no discrimination on the bases of age and harassment is AFFIRMED. The Agency's finding of no discrimination on the basis of reprisal is REVERSED.
ORDER
The Agency is ORDERED to take the following actions:
1. Within one hundred and twenty (120) calendar days of the date that this decision becomes final, the Agency shall conduct a supplemental investigation to determine whether Complainant is entitled to compensatory damages incurred as a result of the Agency's discriminatory action. The Agency shall allow Complainant to present evidence in support of a compensatory damages claim. See Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993). Complainant shall cooperate with the Agency in this regard. The Agency shall issue a final decision addressing the issue of compensatory damages no later than 60 days after the Agency's receipt of all information. The Agency shall submit a copy of the final decision to the Compliance Officer at the address set forth herein.
2. The Agency shall expunge all references to the letter of counseling from Complainant's official personnel file and any other associated Agency records.
3. Within 180 days of the date that this decision becomes final, the Agency shall provide three hours of training to the responsible management official identified as S1, regarding the obligation not to restrain, interfere, coerce, or retaliate against any individual who exercises his or her right to oppose practices made unlawful by, or who participates in proceedings under, the Federal equal employment opportunity laws.
4. Within 120 days of the date that this decision becomes final, the Agency shall consider taking disciplinary action against the management official, identified as S1, for being responsible for the discrimination perpetrated against Complainant. The Commission does not consider training to be a disciplinary action. The Agency shall report its decision to the Commission and specify what, if any, action was taken. If the Agency decides not to take disciplinary action, it shall set forth the reasons for its decision not to impose discipline.
5. The Agency shall post a notice in accordance with the paragraph entitled "Posting Order."
6. The Agency shall submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented.
POSTING ORDER (G0610)
The Agency is ordered to post a Notice to all employees at its National Weather Service Forecast Office (NWSFO), National Oceanic and Atmospheric Administration in Chanhassen, Minnesota, informing them of their right to a work environment free of illegal discrimination, assurance that discrimination will not be tolerated, and that employees have the right to oppose unlawful employment practices. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted by the Agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (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 ten (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)), she 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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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
March 24, 2015
__________________
Date
1 In his complaint, a claim of harassment is not reflected. However, in Complainant's rebuttal to the LOC and in his request for an Agency decision, Complainant stated that the LOC represented a pattern of harassment and was indicative of a hostile work environment.
2 The established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, to the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't of Transportation, EEOC Request No. 05900159 (June 28, 1990).
3 The Commission also notes that Complainant had also participated in an investigation by Central Region Headquarters in late October 2009, concerning S1's alleged refusal to allow the office's Administrative Support Specialist to obtain a service dog for her diabetes.
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0120120157
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120120157