0120132069
08-28-2015
Complainant v. Tom J. Vilsack, Secretary, Department of Agriculture (Farm Service Agency), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Complainant
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Farm Service Agency),
Agency.
Appeal No. 0120132069
Hearing No. 490-2008-00095X
Agency No. FSA-2007-00746
DECISION
On April 26, 2013, Complainant filed an appeal from the Agency's March 28, 2013, final order concerning her 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are (1) whether the Equal Employment Opportunity Commission Administrative Judge (AJ) properly denied a Motion to Compel discovery, (2) whether there are genuine issues of material fact that require a hearing before an AJ, and (3) whether the AJ properly found that Complainant did not establish that the Agency discriminated against her on the bases of age and reprisal when it did not interview or select her for the position of County Operations Trainee.
BACKGROUND
Factual Background
At the time of events giving rise to this complaint, Complainant worked as a County Office Program Technician, CO-7, at the Agency's Arkansas County Farm Service Agency (FSA) in DeWitt, Arkansas. On July 19, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against her in reprisal for prior protected EEO activity when, on June 21 and 28, 2007, the Agency did not interview or select her for the position of County Operations Trainee (COT), CO-1101, under Vacancy Announcement No. AR-07-0001.
On January 3, 2007, the Agency announced two vacancies for County Operations Trainees, CO-1101, in FSA County Offices in the State of Arkansas. The vacancy announcement stated that candidates would be evaluated on seven knowledge, skills, and abilities (KSA's). Complainant applied and was one of 30 candidates found to be qualified for the positions.
A five-member rating panel reviewed the applications of the 13 internal and 17 external applicants and rated them on a scale of 0-5 for each of the KSA's. After the panel members (P1, P2, P3, P4, and P5) individually rated each applicant, they called out their scores and determined a group score for the applicant. P1 gave Complainant a total score of 23, P2 gave her a 21, P3 gave her a 19, P4 gave her a 21, and P5 gave her a 23. Complainant's group score was 21. The panel referred six internal applicants, who received scores of 23 and above, and six external applicants, who received scores of 25 and above, to the State Committee for interviews. Because Complainant received a score of 21, she was not referred for an interview. The five-member State Committee chose one internal candidate and one external candidate for the positions. By letter dated June 15, 2007, the State Executive Director (SED) notified Complainant that she had not been selected for the position.
In her affidavit in the Report of Investigation (ROI), Complainant asserted that she was qualified for the COT position because she had 24 years of experience, received exceptional performance ratings, participated in a Leadership Program, acted as County Executive in the absence of management, and had a Bachelor's Degree in Business Administration. She stated that she previously applied for COT positions through the Kansas City Office and was consistently referred for interviews. She also stated that, since the non-selection at issue here, she twice applied for COT positions and was referred for interviews. Complainant asserted that the internal selectee worked for SED's son, that the external selectee was the son of an Agency employee who served on a committee with SED, and that SED "was pulling favors for people he knew well." In addition, in a document that she submitted with her affidavit, Complainant asserted that age was a factor in her non-selection for the COT position because her experience and education exceeded those of younger individuals who had been promoted.
Complainant stated that she filed seven prior EEO complaints and that she entered into a settlement agreement with the Agency on July 23, 2003. She believed that, because of her experience and qualifications, she would have been interviewed for the position if she had not engaged in prior EEO activity. Noting that three members of the rating panel were aware of her prior EEO activity, Complainant alleged that they subjectively kept her scores low to keep her out of consideration for the position.
Three members of the rating panel (P1, P2, and P3) stated in their affidavits that they were aware of Complainant's prior EEO activity, and two members (P4 and P5) stated that they were not aware of Complainant's protected activity. P1 stated that there was a limited number of interview slots, the panel members determined the cut-off score for referring applicants for interviews, a five-member State Committee conducted the interviews, and the State Committee made the selection decisions. She asserted that there "was an unusually high number of applicants, which may explain why [Complainant] was not referred in this case but may have been considered best qualified other times." P2 stated that the panel members reviewed each applicant's KSA information and assigned a score based on how the applicant addressed each KSA. According to P2, scores were based on "individual scoring and the subjective nature of the process and each panel member's judgment." P3 stated that he reviewed each applicant's KSA information, considered the job requirements, and ranked applicants from the best to the least qualified. P4 stated that he scored each KSA based on his "personal opinion whether it was outstanding, acceptable, or no evidence." P5 stated that he scored the KSA's based on the information that the applicants provided. P4 and P5 noted that, if the cut-off score for interview referrals had been 21 instead of 23, then the panel would have had to refer all five applicants who received scores of 21 in addition to the applicants who received higher scores. According to P5, the panel was instructed to refer five or six applicants.1
SED asserted in his affidavit that he "was not involved" in the selection process for the COT position. He stated that he sat with the State Committee during interviews but did not ask questions. According to SED, "[t]he State Committee makes the selection in consultation with the State Executive Director." He stated that the Committee members told him whom they wanted to hire and that he concurred with their decisions. SED also stated that he never served with the external selectee's father, who was on a state board. He denied that the internal selectee received an advantage from working with SED's son. SED stated that he was not aware of Complainant's prior EEO activity.
Procedural Background
Complainant contacted an EEO Counselor on June 7, 2007, and filed a formal EEO complaint on July 19, 2007. On February 20, 2008, Complainant requested a hearing before an EEOC Administrative Judge. On February 22 and March 26, 2008, the EEOC ordered the Agency to produce the complaint file. The Agency transmitted the ROI to Complainant by letter dated February 6, 2009, and, according to the AJ's decision, the EEOC received the ROI on February 24, 2009. On March 5, 2009, the EEOC sent the parties an Acknowledgment and Order that, among other things, directed the parties to contact each other within 30 days to discuss settlement. In addition, the Order described discovery procedures and stated that discovery should be completed within 90 days of receipt of the Order. On June 19, 2009, the first AJ (AJ1) assigned to the case granted the parties' Joint Motion to Extend Discovery for 30 days.
The Agency filed a Motion for Summary Judgment on August 4, 2009. Complainant, through her then-representative (Representative 1), filed a Response to the Agency's Motion on August 19, 2009. Representative 1 submitted a First Request for Production of Documents Propounded to the Agency on September 14, 2009, and a First Set of Interrogatories Propounded to the Agency on September 25, 2009. In an October 1, 2009, Response, the Agency argued that the requests were untimely and declined to provide the requested information. Subsequently, on October 30, 2009, the Agency filed a Response to Complainant's Motion to Compel Discovery. The record submitted by the Agency on appeal2 contains a copy of a document, entitled "Complainant's Motion to Compel Discovery," that is dated October 28, 2009, and signed by an associate of Representative 1. According to the decision of the second AJ (AJ2) assigned to the case, the EEOC had no record of the filing of a Motion to Compel.
On February 18, 2011, Complainant filed an "Amendment to Complaint." Noting that she was "acting Pro Se," Complainant stated that the Agency selected two white males for the COT program on September 30, 2010, and a white male and a white female for the program on January 28, 2011. The Agency filed an Opposition to Motion to Amend Complaint on March 3, 2011.
AJ Decision
On March 4, 2013, AJ2 issued an Order Denying Motion to Compel and Order Denying Motion to Amend and Decision without a Hearing on Agency's Motion. He noted that, although there was no record of the filing of a Motion to Compel with the EEOC, there was a reference to such a Motion in the file. Accordingly, AJ2 decided to consider the Motion. Noting that the discovery period had been extended until July 19, 2009, that Complainant had not served any discovery until September 2009, that some of the requested documents were already in the ROI, that Complainant requested information about the races and ages of the interviewed applicants even though this is a reprisal case, and that Complainant had not followed the procedures for filing a motion to compel, AJ2 denied Complainant's Motion.
AJ 2 also denied Complainant's attempt to amend her complaint. He noted that Complainant sought to raise matters that occurred three years after the non-selection at issue in this case and that the Commission had addressed some of the matters in EEOC Appeal No. 0120121794.3
In his decision, AJ2 found that Complainant did not establish a prima facie case of reprisal. He concluded that there was no evidence of retaliatory motivation and that the period between the adverse action and the protected activity was not so short that a retaliatory motive could be inferred. In that regard, AJ2 noted that Complainant's non-selection for the COT position occurred four years after Complainant's prior EEO activity.
AJ2 also noted that, although Complainant did not include age as a basis in her formal complaint, she nonetheless asserted that her age was a factor in the Agency's decision not to interview or select her for the COT position. He determined that Complainant was in the protected age group and was six years older than the internal selectee and 15 years older than the external selectee.
Further, assuming that Complainant established prima facie cases of discrimination based on age and reprisal, AJ2 concluded that the Agency articulated a legitimate, nondiscriminatory reason for its action. Complainant received a score of 21 from the rating panel, all of the applicants who were referred for interviews received scores of 23 or higher, and the selectees were the most qualified candidates for the position.
AJ2 determined that Complainant did not show that the articulated reason was a pretext for discrimination. He found that Complainant presented no evidence that the Agency's explanation was unworthy of credence. With respect to Complainant's assertion that SED "was pulling favors for people he knew well," AJ2 stated that pre-selection and a preference for certain individuals because of work or family relationships do not by themselves constitute discrimination in violation of Title VII or the ADEA. In addition, AJ2 noted that Complainant's allegation that the Agency chose the selectees because of their family and work relationships worked against her claim that the Agency acted on the basis of age or reprisal.
AJ2 concluded that "Complainant's bare allegations of discriminatory animus, without more, are insufficient to raise a genuine issue of material fact." Viewing the evidence in the light most favorable to Complainant, AJ2 found that Complainant did not establish that the Agency discriminated against her on the bases of age and reprisal. Accordingly, AJ2 granted the Agency's Motion for Summary Judgment.
On March 28, 2013, the Agency issued a final order fully adopting the decision of the EEOC Administrative Judge. This appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant, through her attorney (Representative 2), appears to request that her complaint be remanded for a hearing. Representative 2 asserts that she contacted the EEOC AJ and the Agency, but "there was no active communication in a reasonable effort to settle the dispute, except the agency followed through what the EEO requested of them." According to Representative 2, this gave her "the idea that there was ALL of the government agencies colluding to control the outcome of the decision, rather than an effort to get to the real rationale and meaning of the dispute." She asserts that, rather than attempt a resolution of the case, "the EEO controlled the conversation with early declaration that there will be no combination of the cases." Representative 2 also asserts that the EEOC prevented her from "submitting [a] response to the open case and the agency position, citing length of time; blaming, in effect [Complainant] for the case being open and on the calendar, though EEOC, USDA and the legal issues of her former representative were the cause of the delays." She argues that, "in the ROI [Complainant] met the deemed support for the interview for the position for which she applied."
Complainant submits an affidavit in which she states that she was not aware that either of her representatives filed a Motion to Compel. Complainant also states that AJ2 called her on June 2, 2012, to ask whether Representative 1 also represented her in a second complaint (EEOC Hearing No. 490-2012-00148X; Agency No. FSA-2011-01602) that had been assigned to AJ2. According to Complainant, she told AJ2 that she did not have a representative for the second complaint. She asserts that she subsequently called Representative 1, who agreed to represent her in the second complaint, and that this was her first contact with Representative 1 since August 18, 2009. Complainant further asserts that, after filing the second complaint, she learned that Representative 1 "had issues involving some illegal practices through the Federal court system." She states that Representative 1 represented her in the instant case until October 10, 2012, and that she notified interested parties on October 22, 2012, that Representative 2 would be her new representative.
Complainant asserts that she contacted the EEOC Hearings Unit on an unspecified date to request all documents related to both of her complaints and received only a July 9, 2012, motion to combine the complaints. Complainant also asserts that Representative 1 called her on December 31, 2012, to ask whether to send files to Representative 2, that she replied that she would get back to him, and that Representative 1 did not claim the certified letter that she sent to him. She states that Representative 1's failure to claim the letter led her "to believe that he was in conversation with some governmental source seeking information." She alleges that AJ2 "knew of [Representative 1's] situation concerning the illegal practices that [were] transpiring from 2009 until present" because AJ2's position as an EEOC Administrative Judge "puts him in a very informed position to know who and any cases before the courts." It is Complainant's "belief" that AJ2 "sought to use some sort of negotiation with [Representative 1] to lesson or reduce charges on" Representative 1 and that, in return, Representative 1 "would do all he could--without it being apparent--to set my case up where it would result in grounds for dismissal."
In response, the Agency contends that AJ2 properly denied the Motion to Compel and the Motion to Amend. The Agency also contends that AJ2 properly granted the Agency's Motion for Summary Judgment. In that regard, the Agency argues that the four-year period between Complainant's prior EEO activity and the non-selection at issue does not create an inference of retaliation. The Agency also argues that there is no evidence that considerations of reprisal or age played a role in the selection process.4
STANDARD OF REVIEW
In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, � VI.B. (Aug. 5, 2015) (providing that both an AJ's decision to issue a decision without a hearing and the decision itself will be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chap. 9, � VI.A. (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
As a preliminary matter, we note that Complainant and Representative 2 appear to argue that Complainant requested that the instant complaint be consolidated with one or more other complaints and that the request was improperly denied. It is not clear from their arguments whether the Agency's EEO Office or an EEOC Administrative Judge denied the request. Our review of the record before us in this case discloses no request for consolidation and no denial of such a request. Accordingly, we make no finding on the matter.
We further note that Complainant alleges that AJ2 engaged in inappropriate conduct. She also appears to allege that the EEOC, the Agency, and Representative 1 somehow colluded to sabotage her case. There is no merit to the allegations. Complainant presents no evidence to support her "belief" that AJ2 negotiated with Representative 1 regarding Representative 1's alleged "illegal practices"--which Complainant does not identify--in return for a dismissal of Complainant's case. Similarly, she offers no evidence to support her belief that Representative 1 "was in conversation with some governmental source seeking information." Further, to the extent that Complainant argues on appeal that the Agency improperly refused to engage in settlement discussions with Representative 2, we note that the parties were directed to contact each other for settlement discussions within 30 days of the March 5, 2009, Acknowledgement and Order. Given that Complainant states that Representative 2 became her representative in October 2012, any effort by Representative 2 to discuss settlement occurred long after the 30-day period. Representative 2's assertion that she was not allowed to file a "response" in this case is similarly unavailing. To the extent that Representative 2 wished to file a response to the Agency's August 4, 2009, Motion for Summary Judgment, the time for filing a response had long passed. Moreover, the record establishes that Representative 1 filed a Response to the Agency's Motion on August 19, 2009, and that AJ2 considered the Response.
Motion to Compel
Complainant states on appeal that she was not aware that her representative filed a Motion to Compel, and AJ2 stated in his decision that the EEOC had no record of the filing of such a Motion. Nonetheless, because the file contained a reference to a Motion to Compel, AJ2 addressed the issue. We find that AJ2, acting in an abundance of caution, correctly addressed the issue and correctly denied the Motion. As AJ2 noted, Complainant served the discovery request on the Agency after the expiration of the discovery period.
Decision without a Hearing
The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case.
If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
In this case, we find that AJ2's decision to issue a decision without a hearing was appropriate. The record has been adequately developed, Complainant was given notice of the Agency's Motion for Summary Judgment, and she responded to the Motion. Complainant had an opportunity to engage in discovery. Given that AJ1 issued a June 19, 2009, Order granting the parties' Joint Motion to Extend Discovery for 30 days and that Complainant did not serve discovery on the Agency until September 14, 2009, we find that Complainant bears responsibility for any harm that she may have suffered as a result of any lack of discovery. For the reasons discussed below, we find that, even assuming all facts in the light most favorable to Complainant, a reasonable fact-finder could not find in her favor. There being no genuine issue of material fact, nor any need for credibility determinations, a decision without a hearing was appropriate.
Non-Selection for the Position of County Operations Trainee
To prevail in a disparate treatment claim such as this, 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 Construction 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 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community 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 Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993). Complainant can do this by showing that the proffered explanations are unworthy of credence or that a discriminatory reason more likely motivated the Agency. Burdine, 450 U.S. at 256. A showing that the employer's articulated reasons are not credible permits, but does not compel, a finding of discrimination. Hicks at 511.
This 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, 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 Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't of Health and Human Servs., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In this case, the Agency articulated a legitimate, nondiscriminatory reasons for its actions. The Agency did not refer Complainant for an interview and did not select her for the County Operations Trainee position because she was not among the best qualified candidates for the position. Complainant received a score of 21 from the rating panel, and all of the applicants who were referred for interviews received scores of 23 or higher. The rating panel did not refer the five applicants who received scores of 21 because the panel was instructed to refer only five or six applicants.
Complainant has not shown the Agency's reason to be a pretext for discrimination. She has asserted that she had more education and experience than the other applicants had, but she has not shown that her qualifications were so plainly superior to those of the interviewed candidates as to establish pretext. See Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). Although Complainant argues on appeal that she "met the deemed support for the interview," she cites to no specific evidence to support her argument. In addition, Complainant has not refuted the panelist's assertions that they could refer only a limited number of applicants for interviews and that, if they had referred Complainant, then they also would have had to refer the other applicants who received scores of 21.
Further, Complainant has not shown that considerations of age or reprisal more likely motivated the Agency's actions. On the contrary, as AJ2 noted, Complainant's allegation of favoritism based on family and work relationships contradicts her claims that the Agency acted on the bases of age and reprisal. Accordingly, viewing the evidence in the light most favorable to Complainant, we find that the evidence does not establish that the Agency discriminated against Complainant on the bases of age and reprisal when it did not interview or select her for the position of County Operations Trainee.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the Administrative Judge properly denied the Motion to Compel; that this case presented no genuine issues of material fact, such that summary judgment was appropriate; and that Complainant has not established that the Agency discriminated against her on the bases of age and reprisal when it did not interview or select her for the position of County Operations Trainee under Vacancy Announcement No. AR-07-0001.
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainants Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 28, 2015
Date
1 According to the Agency's "Authorities and Responsibilities for COT Program" policy, a rating panel should "certify 3 to 5 best qualified candidates . . . for review; up to 10 candidates may be referred for COT vacancy if meaningful distinctions cannot be made among a smaller number."
2 Commission Regulation 29 C.F.R. � 1614.403(e) requires agencies to submit complaint files to the Commission's Office of Federal Operations after receiving notification that a complainant has filed an appeal.
3 In EEOC Appeal No. 0120121794 (Aug. 6, 2012), the Commission affirmed the Agency's final decision finding that the Agency did not discriminate against Complainant on the bases of race, sex, color, age, and reprisal when it did not select her for the COT position advertised under Vacancy Announcement Number AR110006. Noting that Complainant did not challenged the Agency's dismissal of her claims that the Agency discriminatorily did not select her for COT positions under other vacancy announcements, including the AR-07-0001 announcement that is the subject of the instant appeal, the Commission did not address those claims. On appeal, Complainant does not specifically contest the AJ's denial of her Motion to Amend. Therefore, we exercise our discretion not to address that matter. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9, Sec. IV.A. (Aug. 5, 2015).
4 The Agency contends that Complainant did not file her brief in a timely manner. Complainant, who filed her brief on May 24, 2013, did so within 30 days of her April 26, 2013, appeal. Accordingly, Complainant's brief was timely filed. 29 C.F.R. � 1614.403(d).
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