0120122475
08-26-2014
Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120122475
Agency No. DON (MC) 10-67400-00906
DECISION
On May 14, 2012, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated April 13, 2012, 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 accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Motor Vehicle Operator at the Agency's Marine Corps Community Services, Logistics Branch, Motor Transport Section at Camp Foster in Japan.
On April 13, 2010, Complainant filed an EEO complaint, as amended, alleging that the Agency discriminated against him based on:
1. religion (Christian) starting in 2006 when he began his employment and ongoing to November and December 2009 when his direct supervisor (Baptist, Black) harassed him by boastfully opposing Christians in conversations at work;
2. religion when in December 2009, he was harassed by the Director of the Logistics Branch, his fourth line supervisor, by his saying "Hey, you want us to give you an award, and you don't want to attend the party?";
3. race (African-American), color (Black), and religion when his annual performance rating was backdated to December 7, 2009,
4. all the above bases and reprisal for prior protected Title VII EEO activity which started in February 2010 when on January 22, 2010, and thereafter, he did not receive an award for creating and implementing the Motor Transportation Comprehensive Database (Database);1
5. reprisal for the above EEO activity when beginning around March 21, 2010, leaders in his chain of command discriminated and harassed him by intentionally giving him an extra workload;
6. reprisal for the above EEO activity when on April 5, 2010, the Manager of the Motor Transport Section, his third line supervisor, made harassing false accusations against him; and
7. reprisal for the above EEO activity when on April 12, 2012, the Chief of Human Resources sent an email recommending that management take into consideration that Complainant's function of weekend dispatcher be performed by a regular full-time employee, and the forth level supervisor's reply that management would take action on his recommendations.2
The Agency accepted issues 1 through 6 for investigation, and procedurally dismissed issue 7.
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). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The Agency found reprisal discrimination on issue 4 [for not giving Complainant an award on or after March 8, 2010], and no discrimination on the remaining matters.
On appeal, Complainant suggests that discrimination should have been found on all his issues, including issue 7.
In its September 5, 2012, opposition to the appeal, the Agency's Pacific Area Counsel's Office, which represents the Agency, argues that its Office of the Secretary, which issued the FAD, should not have found discrimination. It argues that the reprisal finding occurred in the context of the Agency not proceeding with an EEO settlement proposal to give Complainant an award, and a finding should not be premised on settlement negotiations. The Agency argues that it correctly dismissed issue 7 and found no discrimination on the remaining matters.
ANALYSIS AND FINDINGS
Agency's Discrimination Finding Upheld
On issue 4, the Agency found that it discriminated against Complainant based on reprisal when after his third line supervisor put him in for a Special Achievement Award for $1,000 for his database on March 8, 2010, management decided to hold off issuing the award pending the resolution of Complainant's EEO complaint. The Agency cited the statement of Complainant's fourth line supervisor that he held off moving forward based on legal advice, and the statement of the fifth line supervisor that when he found out that Complainant filed an EEO complaint, he told the fourth line supervisor to hold off all processing of the award until the EEO process had been vetted and the controversy resolved. The Agency found that management's statement on holding off was direct evidence of reprisal.
We decline to reverse the FAD finding of reprisal discrimination with regard to issue 4. While the Agency's representational arm disagrees with it, the Agency has not rescinded the FAD. Moreover, if we construed the Agency's argument to be an appeal from its own FAD finding of discrimination, a scenario which our regulations do not list as a type of permissible appeal (see 29 C.F.R. � 1614.401), it would be untimely. The FAD was issued in April 2012, and the Agency's argument was filed in September 2012, long after any appeal deadlines in our regulations. As we are upholding the finding of reprisal discrimination, we will not address the other bases of discrimination alleged by Complainant with regard to issue 4.
Issues 1 - 3 and 5 - 6
On issue 1 Complainant complained about comments his direct supervisor made involving Person 1 (a Motor Vehicle Operator and the direct supervisor's predecessor before leaving the Agency in 2010), Person 2 (formerly in the Marine Corps with the direct supervisor, and was a pastor at a church in Okinawa, not an Agency employee), and Person 3 (formerly in the Marine Corps with the direct supervisor, and worked for the Department of Defense Schools). Specifically, according to Complainant, his direct supervisor would say that Person 1 was supposedly a Christian, but had a drinking problem. Complainant wrote that at least twice his direct supervisor said he got upset when Person 2 preached offensively at him during Person 3's wedding ceremony and stopped going to church for this reason. He contended that his direct supervisor said he was good buddies with Person 3 but they fell out because Person 3 changed after starting to go to church and becoming a Christian.
Complainant wrote that his direct supervisor made such comments sporadically, maybe every three or four months, and opposed Christians because he was a Mason, which is a religion.
The direct supervisor wrote that he did not recall what he said to Complainant about Person 1. He wrote that when he attended Person 3's baptism Person 2 was preaching as the pastor and while looking at him said "if I can change, anyone can change, even you." According to the direct supervisor, he mentioned this comment to Complainant in 2008 or 2009 without saying anything about anyone being a Christian. Regarding Person 3, the direct supervisor wrote that they spent a lot of time together socially, but after the baptism Person 3 stopped coming to his home. The direct supervisor wrote that he relayed this to Complainant in talking about running into an old friend. The direct supervisor stated that being a Mason is not a religion.
Regarding issue 2, in November or December 2009 Complainant's fourth line supervisor nominated Complainant for the Marine Corps Community Services World Class Service Award, a prestigious non-monetary award to honor his work on the database. Even being nominated is a big honor. ROI, 719. Nominees and awardees were both scheduled to be publically recognized at the annual Marine Corps Community Services Employee Holiday Party on December 18, 2009, at the Officer's Club. While the fourth line supervisor nominated Complainant, he was not involved in the award decision therefore. ROI, 657, 723, 725. Complainant did not want to go to the party because he believed the Agency took Christ out of Christmas by naming it a holiday party when it used to be called a Christmas party.
While Complainant did not communicate that this was the reason he did not want to go to the party, he did indicate he didn't want to go. When the fourth line supervisor saw Complainant he said something to the effect of "so you want an award but you don't want to go to the party." He contended he was joking when he said this, and followed up by telling Complainant he did not like going to these things either, but in his position was obligated to go. Complainant's team leader said he heard the fourth line supervisor make a like former remark to Complainant in cheery manner, and the Complainant smiled and laughed and said something like not liking the kind of exposure of being in front of people. ROI, 754. Complainant's direct supervisor wrote he overheard the fourth line supervisor make the former comment in a joking manner. ROI, 634.
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985). A single incident or group of isolated incidents will not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII [or the Rehabilitation Act] must be determined by looking at all the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, 510 U.S. 17 (1993).
In issues 1 and 2, Complainant alleges that the work environment was hostile to Christians. To establish a prima facie case of hostile environment harassment, a complainant must show that: (1) he is a member of 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 the statutorily protected class; and (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. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. �1604.11.
In finding that the direct supervisor's comments were not harassing, the Agency pointed to his explanations about what he said. The Agency found that he did not know why Complainant did not want to attend the party, and Complainant provided no evidence that his religion was considered. We agree. We add that Complainant admitted that he believed his direct supervisor's comments did not constitute harassment as far as Christianity goes (ROI, 599), and find that they were not sufficiently severe or pervasive to constitute a hostile work environment based on Complainant's Christianity.
Turning to issue 3, the Agency found that Complainant's appraisal was not backdated for the following reasons: his direct supervisor signed the appraisal on the same date for all his employees. In accordance with an e-mail instruction from the Agency's Human Resource Office, he did so prior to December 15, 2009. In compliance with a follow up email from the Agency's Human Resources Office (in January 2010), he then met with all his employees in to have them sign their appraisals. These findings are supported by a preponderance of the evidence. The Agency found that Complainant was not disparately treated.
To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
Complainant has not shown that the Agency's explanation for when his appraisal was dated was pretext to mask discrimination. He has not proven disparate treatment or harassment discrimination because he has not shown that the dating of his appraisal was based on his protected bases.
Regarding issue 5, the Agency found that other dispatchers did not intentionally make scheduling errors for Complainant to catch while he worked on weekends, resulting in additional work. Additionally, the Agency found that Complainant was not expected to load all requests for transportation service over the weekends, but should load what he could and leave the rest for the weekday dispatcher. The Agency found that Complainant was asked to come in for about an hour each Friday to meet with his team leader (the weekday dispatcher) to go over weekend runs and catch overlooked items and errors. All this is supported by a preponderance of the evidence.
We add the record shows that after Complainant advised his third line supervisor about errors in dispatch paperwork, he asked him to meet with the team leader each Friday to uncover errors and email a report at the end of his weekend shift to identify issues that occurred over the weekend so he could fix the problems. ROI, 501, 609, 610, 706. Complainant conceded that after he documented things, the Agency "got a grip" on mistakes that were happening. Further, Complainant's third line supervisor stated Complainant agreed to the Friday meetings and weekend reports. Complainant has not proven discrimination or harassment regarding issue 5 because he has not shown his protected bases were a factor in his workload.
Issue 6 regards Complainant's third line supervisor accusing Complainant in an email exchange with him of blatantly disregarding his directions. The Agency found that this arose due to a misunderstanding on when Complainant was to start reporting on Fridays and begin doing his weekend report. The third line supervisor asked Complainant to start on Friday, which Complainant interpreted as the following Friday, and the supervisor interpreted as the upcoming Friday. When Complainant did not show up and do his weekend report, the third line supervisor sent him an email asking why this occurred and writing this was a blatant disregard of his instruction. After Complainant explained, the third line supervisor replied by email that he now considered the matter resolved. He took no further action. Based on a review of the emails and the statements of Complainant and the third line supervisor, we agree with the Agency that issue six arose from a misunderstanding, and was not motivated by reprisal.
Remedies
On appeal, Complainant argues that the Agency should have awarded him $5,230 in past pecuniary damages for out-of-pocket medical expenses, $25,000 for future medical expense and psychiatric treatment, and $235,000 in non-pecuniary damages. This is similar to the damages he previously requested.
Compensatory damages may be awarded for past pecuniary losses, future pecuniary losses, and non-pecuniary losses that are directly or proximately caused by the agency's discriminatory conduct. Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991 (July 14, 1992) (available at www.eeoc.gov.) Non-pecuniary losses are losses that are not subject to precise quantification including emotional pain and injury to character, professional standing, and reputation. Compensatory damages are awarded to compensate for losses or suffering inflicted due to discrimination. Damages for past pecuniary damages will not normally be sought without documentation such as receipts, records, bills, cancelled checks, or confirmation by other individuals of actual losses and expenses. Id.
Non-pecuniary damages
In his June 21, 2011 statement regarding his compensatory damages, Complainant contended that as a result of not receiving the award, since January 22, 2010, he was very depressed and angry, and set out symptoms thereof such as sleeplessness, being tired and mentally exhausted, loss of enjoyment, loss of motivation, loss of focus at work, loss of self-esteem, isolating himself, secretly crying, and getting easily agitated and upset, and being moody. He also wrote that he was stressed and anxious, embarrassed, humiliated, lost trust in his chain of command and was angry with them.
Complainant attributed some of his emotional pain and suffering to causes in which discrimination was not found and thus are not compensable here -- extra workload, falsely being accused of blatantly disregarding orders, his schedule, and he suggested, his unemployment. Previously, in reference to issue 7, Complainant stated that he was stressed out and felt management was trying to get him out of his position. ROI, 611. In his June 2011 compensatory damages statement, Complainant similarly wrote that he felt the Agency was out to get him, he was always on guard, and felt his professional standing was injured because he was not able to keep up with his workload. None of this is compensable to the extent it is unrelated to award.
In his June 2011 compensatory damages statement, Complainant acknowledged that outside factors played a role in his pain and suffering - he cryptically wrote that the Agency's actions were at least "partially responsible" for his exacerbation of his heart problem, throbbing heartbeats and anxiety attacks, bouts of insomnia and depression.
Complainant submitted 17 one page documents, 16 of which are in Japanese language. He described them as being from health care providers, and did not indicate any linked his emotional and physical conditions to not receiving the award. Complainant wrote that he visited health care providers for insomnia, anxiety, heart and breathing issues. The one document in English was an appointment reminder for Complainant's echocardiogram. Because these documents are Complainant's private medical papers which were submitted by him to support case, the burden was on Complainant to do so with certified translation. We are unable to decipher and hence consider the documents in Japanese language.
Complainant provided no statements from friends or family corroborating his account of pain and suffering. Nevertheless, in his initial investigative declaration in September 2010, Complainant did write that he was emotionally destroyed when he did not get a financial award for his database, something on which he worked hard. ROI, 605. This is consistent with his later compensatory damages statement.
We find that a non-pecuniary damages award of $1,500 is appropriate in this case. This takes into account Complainant's statements of pain and suffering as a result of not being granted a financial award, there being no medical or other corroborating evidence thereof, and that some of his pain and suffering was admittedly unrelated to the award matter. See Complainant v. Department of the Air Force, EEOC Appeal No. 0120130166 (May 7, 2014)(complainant was retaliated against when he received a mid-term evaluation which criticized him for seeking agreement with co-workers that management decisions were biased or discriminatory. He stated that he was in shock and intimidated after receiving the mid-term evaluation, and suffered anxiety, panic, sleeplessness, chest pain, tightness, depression, headaches, and decreased self-esteem. Non-discriminatory factors also contributed to the pain and suffering. Awarded $1,500 in non-pecuniary damages); Foster v. United States Postal Service, EEOC Appeal No. 0120121598 (Sep. 4, 2013) (complainant wrote a letter to her congresswomen that she filed a hostile work environment claim against her manager and accused him of mistreating, demeaning and humiliating her. The manager found the letter and posted it outside his door for a short period, which was retaliatory. Complainant stated generally that she suffered anxiety attacks, was prescribed medication, and no longer felt safe as a result of the manager's actions, albeit she did not isolate damages she incurred related to the posting. Awarded $1,000 in non-pecuniary damages).
Pecuniary Damages
Damages for past pecuniary damages will not normally be sought without documentation such as receipts, records, bills, cancelled checks, or confirmation by other individuals, or other proof of actual losses or expenses. Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991 (July 14, 1992) (available at www.eeoc.gov.) While Complainant submits what he purports to be receipts, we are unable to decipher them because they are in Japanese and are not translated. Complainant requested $25,000 in future medical expenses for future medical expenses and psychiatric treatment. In denying this expense, the Agency found that Complainant did not submit supporting evidence thereof. We agree. The Agency's denial of pecuniary damages is affirmed.
Equitable Relief
The Agency provided a variety of equitable relief. It issued Complainant a Letter of Commendation dated May 9, 2012, lauding his database and his work thereon, and issued him a check on May 2, 2012, for $2,000, $1,000 of which was for a performance award, and the remainder or non-pecuniary damages. The Agency posted in the break room of Complainant's former workplace for 60 days starting on May 12, 2012, a notice that the posted facility was found to have violated Title VII when it retaliated against an individual regarding denial of a commendation award, that it was ordered to take various corrective actions, and will not retaliate against employees who file EEO complaints. The Agency gave training in May 2012, which included open discussion on protected activities and EEO responsibilities for such to the team leader, the direct and second through six line supervisors, and the Chief of Human Resources. After investigating the facts and circumstances surrounding the finding of discrimination, the Agency determined that no disciplinary action was warranted.
On appeal, Complainant argues that he was not issued a Special Achievement Award certificate and citation. Given the date of the appeal, it is not clear whether he received the Letter of Commendation at this point. Complainant notes that in its FAD, the Agency found that he was entitled to an award certificate. We find that the Letter of Commendation meets or substantially meets this requirement, albeit it was not labeled an award.
On appeal, Complainant suggests that the notice of discrimination found was insufficient because it was only posted in one place and failed to indicate what type of discrimination took place. Complainant does not explain why he considers the posting in the break room to be insufficient, and the posting identified the discrimination which occurred.
We find that the Agency provided Complainant make whole relief.
Issue 7 - Procedural Dismissal
In this issue Complainant alleged reprisal for prior EEO activity when on April 12, 2012, the Chief of Human Resources sent an email recommending that management take into consideration that Complainant's function of weekend dispatcher be performed by a regular full-time employee, and the fourth level supervisor's reply that management would take action on his recommendations.
The Agency dismissed this issue for failure to state a claim and constituting a preliminary step to taking a personnel action. The Agency reasoned that no employment action occurred as a result of this matter nor did it chill his ability to use the EEO process.
The Commission has a policy of considering reprisal claims with a broad view of coverage. See Carroll v. Department of the Army, EEOC Request No. 05970939 (April 4, 2000). Under Commission policy, claimed retaliatory actions which can be challenged are not restricted to those which affect a term or condition of employment. Rather, a complainant is protected from any discrimination that is reasonably likely to deter protected activity. See EEOC Compliance Manual Section 8, "Retaliation," No. 915.003 (May 20, 1998), at 8-15; see also Carroll. Applying this principle, we find that a threat to replace Complainant's function as a weekend dispatcher with a full-time employee could reasonably deter EEO activity. Accordingly, the Agency's dismissal of issue 7, as numbered herein, is reversed.
The FAD is MODIFIED.
ORDER
The Agency is ordered to take the following remedial actions:
1. To the extent it has not already done so, the Agency shall pay Complainant $1,500 in non-pecuniary damages (meaning it may deduct non-pecuniary damages already paid to him in this case) within 60 calendar days after this decision becomes final;
2. Send Complainant a copy of the May 9, 2012, Letter of Commendation within 60 calendar days after this decision becomes final;
3. The Agency is ordered to process issue 7, as numbered herein, in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claim within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request. A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
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 verifying that the corrective actions have been implemented.
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 (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 26, 2014
__________________
Date
1 While in his complaint Complainant did not allege reprisal discrimination on this issue, based on the investigation the Agency found that reprisal should be added in its May 20, 2011, interim decision, which merged with the FAD.
2 The above are the issues which the Agency defined. We changed and added some dates based on Complainant's investigative clarifications. On appeal, Complainant argues that in defining his complaint, the Agency missed some issues. We find that the Agency's definition fairly captured his complaint. In making this finding, we note that when the Agency defined the complaint, it notified Complainant that if he did not believe the accepted claim was correctly identified, he should notify the Agency within a week. Report of Investigation (ROI), 115. The record does not show he did so. On December 17, 2010, after the completion of the investigation, the fourth line supervisor instructed Complainant to stop coming to work on the grounds that he verbally threatened violence in the workplace the day before. Complainant raises this matter on appeal. This matter is not part of his complaint, and is not before us.
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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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0120122475