0120132360
07-09-2015
Complainant v. Sylvia Mathews Burwell, Secretary, Department of Health and Human Services, Agency.
Complainant
v.
Sylvia Mathews Burwell,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 0120132360
Agency No. HHS-SAM-0072-2011
DECISION
Complainant timely filed an appeal from the Agency's final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C.
� 791 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS in PART and REVERSES in PART the Agency's final decision.
ISSUES PRESENTED
The issues presented are: (1) whether Complainant established that the Agency's proffered explanation for its actions was pretext to mask discrimination based on his protected classes; (2) whether Complainant established that he was denied reasonable accommodation for his disability; (3) whether the Agency is liable for compensatory damages in connection with its failure to provide Complainant with reasonable accommodation; and (4) whether Complainant established that he was subjected to hostile work environment/ harassment, as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Public Health Advisor, GS-13, at the Agency's Substance Abuse and Mental Health Services Administration (SAMHSA), Community Assistance, Center for Substance Abuse Treatment (CSAT), Performance Partnership Grant Branch (PPGB) in Rockville, Maryland. Report of Investigation (ROI), at 80.
In 1999, Complainant notified the Agency that he suffers from Attention Deficit Disorder (ADD) and Borderline Personality Disorder. Id. at 113-14. As a result, on January 3, 2000, the Chief, Systems Development and Integration Branch, sent Complainant a memorandum, noting that the Agency's physician had reviewed documentation in connection with Complainant's request for accommodation for a proposed detail. Id. The Chief wrote that Complainant's psychologist stated:
[Complainant] would function optimally in an orderly work environment with clear goals and feedback from supervisors. Uneven workloads and lack of sufficient structure would inevitably lead to stress and continuant reduction of productivity.
Id.
The Chief wrote that Complainant's requests for accommodations would be provided, including a proposed detail to the Office of Policy Coordination and Planning. Id. According to Complainant, the Agency granted his request for accommodations immediately thereafter. Id., at 85.
In 2003, Complainant was assigned to work under the Branch Chief for PPGB, who became his first-level supervisor (S1). Id. at 89. S1 had served as Complainant's acting supervisor prior to that time. While at PPGB, Complainant's duties as a Public Health Advisor included serving as a State Project Officer (SPO) for a number of U.S. states and territories. Id. at 168. As a SPO, Complainant was responsible for the administration of the Substance Abuse Prevention and Treatment (SAPT) Block Grant program, which assists states and territories to implement activities to prevent and treat substance abuse and other related public health issues. Id. at 251-52. The SAPT Block Grant program provided funds for use by states to establish monies for group homes. Id. Complainant's duties as a SPO further included conducting on-site visits, reviewing expenditures of state funds to monitor compliance with federal regulations. Id. Complainant, as well as the Agency, had worked with Oxford House, Inc., for 19 years, a private company using funds to establish group homes to help individuals recover from substance abuse. Id. at 252-54. According to another SPO, a coworker of Complainant's, as of 2001, states were no longer mandated to use the Oxford House model and could use other options. Id. at 253.
According to S1, in April 2011, he (S1) received verbal complaints about Complainant from officials from states and territories. S1 averred these state officials alleged that Complainant tried to improperly influence them. Id. at 91-92. S1 averred that Complainant gave the appearance that he was acting as an agent for Oxford House and appeared to be trying to influence how states and territories utilized SAPT Block Grant funds. Id. S1 further averred that staff felt they were being pressured by Complainant to use funds to support a full-time employee equivalent position to help develop Oxford houses. Id. S1 stated that these allegations were made by various states and territories, including the Federated States of Micronesia. Id.
On May 26, 2011, S1 notified Complainant, via memorandum, that the Agency would be conducting an investigation into the allegations made against him. Id. at 116. S1 specifically wrote:
[The Agency] is conducting an administrative investigation into allegations made by one or more delegated authorities within the executive branch of States and Territories that are responsible for the administration of the Substance Abuse Prevention and Treatment (SAPT) Block Grant. The delegated authorities allege that you have engaged in inappropriate conduct regarding your role as a Public Health Advisor including, but not limited to, coercion and intimidation of such authorities.
Id.
As a result, the Agency relieved Complainant of his responsibilities as they related to serving as a SPO, pending the outcome of the investigation. Complainant was prohibited him from engaging in any oral or written contact with employees of any state or territory. Complainant was also instructed to have no further communication with the Oxford House, Inc. Thereafter, on June 6, 2011, via e-mail, S1 gave Complainant assignments to read annual reports and progress reports. Id. at 82. S1 further instructed Complainant to prepare 17 summary reports regarding SAPT Block Grant requirements.
On June 9, 2011, Complainant responded to S1's e-mail, raising various concerns over the June 6th assignment. Id. at 271-73. Specifically, Complainant wrote to S1, in pertinent part, that the assignment was very large, requiring extensive time and effort. Id. Complainant also wrote that he had limited expertise and experience with such an assignment, and requested assistance, examples, and feedback to complete it. Id. On July 1, 2011, Complainant wrote S1 another e-mail, indicating that he had moved forward with the June 6th assignment. Complainant also expressed concern that S1 had not yet responded to his prior e-mail. Id. According to Complainant, S1 did not respond to either his June 9, or July 1, 2011, e-mails. Id. at 83.
On September 15, 2011, Complainant sent S1 another e-mail, requesting an explanation about the reassignment of his duties, but S1 again failed to respond. Id. at 82-84. S1 averred that he did not respond to Complainant's September e-mail because he had no reason believe the e-mail necessitated a response. Id. at 94. S1 averred that, in the body of the e-mail, Complainant only listed general findings that he had made with regard to a few states, and therefore had not completed the assignment. Id. S1 further indicated that Complainant did not specifically request any feedback in the e-mail.1
Subsequently, on October 14, 2011, S1 issued Complainant a memorandum of counseling, advising Complainant that the administrative investigation had been completed. Id. at 131-34. In the memorandum, S1 noted that the investigation called into question Complainant's ability to conduct himself favorably as an Agency representative. Id. S1 noted that two states independently expressed concern and confusion regarding Complainant's role as an Agency employee. Id. S1 also noted that Complainant was easily angered, rude, and abrupt when dealing with others, and therefore instructed Complainant to display professional behavior in the workplace. Id. S1 lastly noted that the instant memorandum was simply a warning and no disciplinary action would be imposed. Id.
On October 3, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated and subjected him to hostile work environment/harassment on the bases of disability and reprisal for prior protected EEO activity2 when:
1. On May 19, 2011, S1 denied his request to telecommute;
2. On May 19, 2011, S1 notified him that he was relieved of his current responsibilities and communications with a non-profit organization he worked with for 19 years.
3. On May 26, 2011, he was notified that, pending an administrative investigation, he was being relieved of his responsibilities as a SAPT Block Grant Officer, and he was issued a memorandum by S1 outlining his new job responsibilities;
4. On June 6, 2011, he was given an assignment by S1 that was outside of his skills and experience, and he was given an unreasonable deadline;
5. On September 15, 2011, S1 did not respond to his e-mail requesting an explanation for reassignment of his duties.
On April 5, 2012, the Agency issued a Partial Acceptance/Partial Dismissal Letter. Therein, the Agency accepted claims 3-5 for processing, but dismissed claims 1 and 2 for untimely EEO Counselor contact pursuant to 29 C.F.R. � 1614.107(a)(2).3
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 but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
Specifically, the Agency found that although Complainant established that he was an "individual with a disability," he failed to prove that its actions were motivated by discriminatory animus as alleged. The Agency noted that the administrative investigation and the memorandum of counseling were initiated by individuals whom Complainant dealt with outside of the Agency. The Agency also found that Complainant failed to establish a prima facie case of discrimination based on reprisal. The Agency indicated that S1's failure to respond to Complainant's e-mails did not constitute an adverse action for the purposes of reprisal. The Agency additionally found that Complainant failed to establish that he was denied accommodation. The Agency noted that although there was a breakdown in communication between Complainant and S1 about the June 6th assignment, S1 was available by telephone and could have spoke to Complainant directly. The Agency lastly found that Complainant failed to make out a prima face case of hostile work environment/harassment as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant, through his attorney, argues that, beginning in May 2011, S1 denied his requests for reasonable accommodation. Complainant alleges that S1 failed to provide him with proper feedback and provided him an assignment outside of his skills with an unreasonable deadline, despite his requests for guidance. Complainant also argues that he established prima facie cases of discrimination based on disability and reprisal. Complainant states that he suffers from Attention Deficit Disorder and Borderline Personality Disorder. Complainant further says that his instant October 3, 2011, formal EEO complaint constituted his protected EEO activity. Complainant indicates that he requested reassignment until the matters in his instant complaint were resolved.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, � VI.A. (Nov. 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
Disparate Treatment
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). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shirts to the Agency to articulate a legitimate, non-discriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
Upon review, we find that assuming, arguendo, that Complainant established a prima facie case of discrimination based on disability and reprisal, the Agency articulated legitimate, non-discriminatory reasons for its actions. Specifically, as noted above, S1 explained that he received verbal complaints about Complainant from officials from states and territories. Id. at 91-92. S1 explained that Complainant gave the appearance that he was acting as an agent for Oxford House Inc., and he appeared to be trying to influence how states utilized SAPT Block Grant funds. Id. S1 said that states and territories felt pressured by Complainant to use funds to help develop Oxford houses. Id. Complainant's second-level supervisor (S2) indicated that the Agency received complaints about Complainant from officials in Colorado, Michigan, and the Pacific Jurisdiction. Id. at 100-101.
S1 further averred that he gave Complainant the June 6, 2011, special assignment to replace his main job responsibilities, pending the outcome of the investigation. Id. at 92-93. S1 explained that Complainant normally reviewed annual reports, progress reports, and intended-use plans for the Pacific Jurisdiction. Id. S1 indicated that Complainant would be doing the same for all jurisdictions. Id. S1 indicated that these new duties assigned to Complainant were very similar in nature to those in Complainant's 2011 performance plan. Id.
The burden now shifts to Complainant to establish that the Agency's nondiscriminatory reasons were pretext for discrimination. Burdine, at 254. We note that, on appeal, although Complainant alleges that he established prima facie cases of discrimination, he does not present any arguments challenging the Agency's legitimate, nondiscriminatory reasons. We note that the record contains numerous statements from management officials and correspondence between them, discussing similar complaints they received from officials in Michigan, Colorado, and Micronesia. We point out that Complainant was relieved of his responsibilities and given his new assignments prior to his EEO Counselor contact. There is no evidence here that the Agency was motivated by discriminatory animus towards Complainant's mental disability or EEO activity. We note that Complainant withdrew his hearing request; we do not have the benefit of an Administrative Judge's credibility determinations after a hearing, and can only evaluate the facts based on the weight of the evidence presented.
Reasonable Accommodation
The Commission notes that the Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See 29 C.F.R. � 1630. In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) he is an individual with a disability, as defined by 29 C.F.R. � 1630.2(g); (2) he is a qualified individual with a disability pursuant to 29 C.F. R. � 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, No. 915.002 (Oct. 17, 2002) (Reasonable Accommodation Guidance). Under the Commission's regulations, an Agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. See 29 C.F.R. �� 1630.2(c) and (p). Here, the Agency does not dispute that Complainant is a qualified individual with a disability; it only disputes Complainant's claim that it failed to provide him with reasonable accommodation. We also note that the Agency previously provided Complainant accommodation in 2000, and therefore previously accepted that he is qualified individual with a disability. As such, we will only address whether the Agency denied Complainant accommodation as alleged.
Here, Complainant contends that S1 knew or should have known of his request for accommodation. Complainant states that the Agency granted his request for accommodation on January 3, 2000, for his disability. Complainant further states that S1's June 6, 2011, assignment affected his disability because he was denied guidance, assistance, and additional time to work on the project. Complainant maintains that S1 has not provided him assistance, feedback, and guidance in accordance with his January 3, 2000, accommodation. Complainant states that S1 did not respond to his e-mails dated June 9, July 1, and September 15, 2011, for guidance and feedback with respect to the work he was performing on June 6th assignment.
However, according to S1, he was not aware that Complainant's disability was impacting his performance or that he needed accommodation with respect to the June 6, 2011, assignment. Id. at 90-91. S1 averred that Complainant never made a formal request for accommodation to him. Notwithstanding S1 contentions, we note that when requesting reasonable accommodation, an employee is not required to use the "magic" words "reasonable accommodation." See Reasonable Accommodation Guidance, at Q.1. Instead, the employee need only inform the Agency that he or she needs an adjustment or change at work for a reason related to a medical condition. See Triplett-Graham v. U.S. Postal Serv., EEOC Appeal No. 0120044720 (Feb. 24, 2006). Here, there is no dispute that the Agency was aware of Complainant's disability and ongoing need for accommodation dating back to January 3, 2000, when it granted his request. Therein, the Agency had granted Complainant's request for accommodation for his ADD based on his psychologist's recommendation.
We note that an agency's duty to provide reasonable accommodation is ongoing. See Reasonable Accommodation Guidance, Q.32. Even assuming that S1 was not aware of Complainant's disability, Agency management should have notified S1 of Complainant's reasonable accommodation and ongoing need for such when S1 became Complainant's permanent supervisor in 2003. The record reflects that neither S1 nor any other Agency official provided Complainant with accommodation with regard to the June 6th assignment. We note that Complainant sent S1 at least eight e-mails from June 9 through October 7, 2011, requesting assistance and direction with regard to the work he was performing. ROI, at 272-73, 292-99. The record contains no responses from S1 with respect to any of Complainant's e-mails. Id. It is apparent that S1 neither responded to Complainant's e-mails nor provided him with any assistance with his work. S1 clearly did not engage in the interactive process with Complainant.4 S1 specifically does not dispute that he did not give feedback to Complainant or respond to his e-mails. Id. at 94. We therefore find that Complainant has met his burden of establishing that he was denied reasonable accommodation for his disability as alleged.
Liability for Compensatory Damages
Under Section 102 of the Civil Rights Act of 1991, compensatory damages may be awarded for pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, and loss of enjoyment of life. However, this section also provides that an agency is not liable for compensatory damages in cases of disability discrimination where it demonstrates that it made a good faith effort to accommodate the complainant's disability. A good faith effort can be demonstrated by proof that the agency, in consultation with the disabled individual, attempted to identify and make a reasonable accommodation. Schauer v. Soc. Sec. Admin., EEOC Appeal No. 01970854 (July 13, 2001).
In the instant case, as noted above, S1 failed to respond to at least eight e-mails sent by Complainant regarding his work. We note that Complainant averred that, particularly in light of his disability, S1's failure to ever respond to his written requests for guidance, assistance, and more time, added to his distress. We note that the Agency was clearly aware of Complainant's disability because it had previously accommodated him for it. We emphasize that an agency's duty to provide reasonable accommodation is ongoing and that certain individuals require only one reasonable accommodation, while others may need more than one. See Reasonable Accommodation Guidance, Q. 32. Accordingly, we find that the Agency did not act in good faith and therefore is liable for compensatory damages in connection with its failure to provide Complainant with a reasonable accommodation.
Hostile Work Environment/ Harassment
To establish a claim of harassment based on disability, or reprisal, Complainant must show that: (1) he is a member of the 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 her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. � 1604.11. Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris, 510 U.S. at 21. The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994) (Enforcement Guidance on Harris).
As we noted above, there is no evidence here that the Agency was motivated by discriminatory animus towards Complainant's mental disability or EEO activity when he was relieved of his duties, subjected to the administrative investigation, and given the June 6th assignment. Further, although we have determined that the Agency violated the Rehabilitation Act by failing to provide Complainant with reasonable accommodation, we find that, under the circumstances of this case, Complainant has not proven sufficiently severe or pervasive events to show that he was subjected to a hostile work environment. Although Complainant's work environment may not have been ideal, we do not find that it was hostile and abusive based on Complainant's protected bases. We note that not every unpleasant or undesirable action which occurs in the workplace constitutes an EEO violation. See Shealy v. EEOC, EEOC Appeal No. 0120070356 (Apr. 18, 2011) (citing Epps v. Dep't of Transp., EEOC Appeal No. 0120093688 (Dec. 19, 2009). Therefore, we find that Complainant has failed to establish that he was subjected to a hostile work environment.
CONCULSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not established that the Agency's legitimate, nondiscriminatory reasons were pretext for discrimination; that he has established that he was denied reasonable accommodation for his disability; that the Agency is liable for compensatory damages in connection with its failure to provide Complainant with a reasonable accommodation; and that, under the circumstances of this case, Complainant did not establish that he was subjected to hostile work environment harassment as alleged. Accordingly, we AFFIRM the Agency's decision with respect to disparate treatment and hostile work environment harassment. We REVERSE the Agency's decision with regard to reasonable accommodation.
ORDER
The Agency is ORDERED to take the following remedial action within 120 days of the date this decision becomes final, unless otherwise specified:
1) The Agency shall immediately recommence providing Complainant with reasonable accommodation, engaging in the interactive process as may be necessary to establish the necessary accommodation.
2) The Agency shall give Complainant a notice of his right to submit objective evidence (pursuant to the guidance given in Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (January 5, 1993)) in support of his claim for compensatory damages within forty-five (45) calendar days of the date Complainant receives the Agency's notice. The Agency shall complete the investigation on the claim for compensatory damages within forty-five (45) calendar days of the date the Agency receives Complainant's claim for compensatory damages. Thereafter, the Agency shall process the claim in accordance with 29 C.F.R. � 1614.110.
3) The Agency shall provide a minimum of eight (8) hours of EEO training to all responsible management officials at its Rockville, Maryland facility regarding their responsibilities under EEO laws, with a special emphasis on the Rehabilitation Act.
4) The Agency shall consider taking appropriate disciplinary action against all responsible management officials still employed by the Agency. 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 employment, then the Agency shall furnish documentation of the departure date(s).
5) The Agency shall post a notice in accordance with the paragraph 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 action has been implemented.
POSTING ORDER (G0914)
The Agency is ordered to post at its Rockville, Maryland 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 (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
July 9, 2015
Date
1 In addition to the e-mails dated June 9, July 1, September 15, 2011, Complainant also sent e-mails to S1 dated July 15, July 29, August 11, August 26, and October 7, 2011. ROI, at 272-73, 292-99. There is no evidence that S1 responded to any of these e-mails. Id.
2 Complainant initially contacted an EEO Counselor on July 7, 2011. Complainant had no previous EEO contact before that time. Complainant, however, asserts that the Agency subjected him to reprisal for his request for accommodation in 1999, which the Agency had granted on January 3, 2000.
3 On appeal, Complainant does not specifically contest the Agency's partial dismissal of claims 1 and 2; therefore, we exercise our discretion not to address the Agency's dismissal of these claims herein. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9, Sec. IV.A. (Nov. 9, 1999).
4 After receiving a request for reasonable accommodation, the Agency and the employee should engage in an informal, interactive process to clarify what the employee needs and identify the appropriate reasonable accommodation. See Reasonable Accommodation Guidance.
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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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