EEOC Appeal No. 0720120041
03-12-2015
Complainant v. U.S. Postal Serv.
Miquel G.,
Complainant
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0720120041
Hearing No. 443-2010-00142X
Agency No. 4E-500-0016-10
DECISION
Concurrent with its September 6, 2012, final order, the Agency filed a timely appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405(a). On appeal, the Agency requests that the Commission affirm its rejection of an EEOC Administrative Judge's (AJ) finding of discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission REVERSES the Agency's final order.
ISSUE PRESENTED
The issue presented is whether the Administrative Judge properly found that Complainant had established that he was discriminated against based on reprisal.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Carrier Technician at the Agency's Northeast Station in Cedar Rapids, Iowa. As a Carrier Technician, he was responsible for delivering mail in the absence of the regularly assigned Carrier for at least five delivery routes. Complainant had previously been issued discipline in the form of: a Letter of Warning on March 18, 2008; a 7-day Suspension for Failure to Follow Instructions, on August 7, 2008; a 14-day Suspension for Failure to Follow Instructions, on October 24, 2008; a Notice of Removal (reduced to a 30-day Suspension) for Improper Conduct, on December 2, 2008; and a Notice of Removal, (reduced to a 60-day Suspension) for Unacceptable Conduct, on May 21, 2009. On August 7, 2009, Complainant and the Agency executed a Last Chance Settlement Agreement, which mitigated the May 5, 2009, Notice of Removal to a 60-day suspension, and which provided that "any infractions...whether they be for attendance, performance, or conduct related, will result in the removal of [Complainant]." Complainant returned to work on August 26, 2009. On November 3, 2009, Complainant missed an assigned collection box on his route, and did not inform his supervisors of the error before leaving his tour.
On February 19, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male), age (48), and in reprisal for prior protected EEO activity arising under Title VII and the ADEA when, on November 20, 2009, he received a Notice of Removal for violation of a Last Chance Agreement (LCA) (effective May 5, 2010).
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing.
The Agency filed a Motion for a decision without a hearing on December 3, 2010. Complainant filed a Motion for a decision without a hearing on December 17, 2010, in which he requested either a decision on the record in his favor, or to be granted a hearing. The Agency submitted a response to Complainant's Motion on December 23, 2010. The AJ set the matter for hearing.
The AJ held a hearing on June 9 and June 10, 2011, at which seven witnesses testified. He issued a decision on July 25, 2012. In his decision the AJ found the following facts: Complainant was a Carrier Technician in Cedar Rapids, Iowa. His first-level supervisor was the Supervisor, Customer Service (S1), and his second-level supervisor was the Manager, Customer Services (S2). Complainant had engaged in prior protected EEO activity in December 2008, when he contacted an EEO Counselor to allege that a member of the management team had announced his desire for Complainant to be removed from the Agency. He also initiated EEO contact in May 2009, alleging that he was being harassed and "set up" for termination. On May 21, 2009, Complainant received a Notice of Removal for unacceptable conduct. He and the Agency signed a Last Chance Agreement on August 7, 2009, which reduced the removal to a 60-day suspension and contained the language quoted above.
On November 3, 2009, Complainant was called in on his regularly-scheduled day off to fill in for another Carrier. He asked to report half an hour earlier than usual, and was granted permission to do so. One of the collection boxes on his route that day had a pick-up time of 1:00 p.m. Complainant arrived at the collection box at 11:00 a.m., due in part to his early start. He purposefully skipped the box because it was too early to scan the collection box and collect the mail. He intended to come back to the collection box later in his route. Complainant forgot to return to the box.
The AJ found that it was standard practice to advise a Carrier when a collection box has been missed and to send the Carrier back out to get the mail from the missed box. If that Carrier is not available, another Carrier will be sent out. Complainant was not advised that day that he failed to scan the collection box. Another Carrier was sent to collect and scan the collection box. The AJ found that she was on a nearby route at the time and only had to deviate 3 or 4 blocks to collect the mail from the box Complainant missed.
Complainant admitted he forgot to collect the box. He testified that he had missed boxes before and had never been disciplined for it. He also testified that it was his belief that no one was ever disciplined for missing a box. A Union steward testified that in 16 years he has never observed any employee being disciplined for a missed collection box. S1 recommended that Complainant be disciplined for missing the collection box. On November 16, 2009, Complainant was notified that he would be removed from the Agency for violating the LCA. His prior history of discipline was cited. S1 testified that the only reason for removing Complainant was the violation of the LCA. S2 concurred in the removal. The AJ found that S1 had never previously issued formal discipline to an employee for missing a collection box. S2 testified that he had never previously given any employee formal discipline for failing to scan a collection box.
The AJ found that Complainant had failed to establish that he was discriminated against based on age or sex with respect to his removal. He found "little, if any, evidence in the record to show that the Agency was motivated by ageist or sexist animus." The AJ concluded that Complainant had established that he was retaliated against because of his prior EEO activity when he was terminated. He found that Complainant had established a prima facie case of reprisal discrimination in that he had shown he had engaged in prior protected EEO activity, that S1 and S2 were aware of his EEO activity, that he was subject to an adverse action, and that he had raised an inference of retaliation as he was the only person to ever receive formal discipline for missing a collection box.
The AJ found that the Agency had articulated a legitimate, nondiscriminatory reason for Complainant's removal in that he violated the terms of his LCA. The Agency claimed that a missed collection box was an infraction envisioned in the LCA. The AJ found that Complainant had met his burden to show that the Agency's articulated reason was a pretext for discrimination, in that a missed collection box was not actually the sort of infraction contemplated by the parties in the LCA. He established that missed scans happened somewhat frequently, and that standard practice was to send the Carrier back out to collect the mail from the missed box. S1 and S2 admitted that they had never disciplined anyone for a missed collection box.
The AJ held that the Agency acted in bad faith when it determined that a missed collection box was the type of infraction contemplated by the parties in the LCA. Missed collection scans were not related to any of Complainant's prior discipline, and were not delineated in the LCA as a potential violation, as other infractions were. The AJ found that the Agency "exaggerated its concern" over the missed scan in other to support the Notice of Removal. He concluded that Complainant had established that he had been subjected to discrimination based on reprisal.
The AJ awarded make whole relief in the form of reinstatement as a Carrier Technician at a Cedar Rapids, Iowa facility (or mutually agreeable position/location) within 30 days; back pay and benefits, including career ladder promotions; and $10,000 in compensatory damages.
The Agency subsequently issued a final order rejecting the AJ's finding that Complainant proved that the Agency subjected him to discrimination as alleged, and simultaneously appealed to the Commission. In accordance with the AJ's Order and the regulation found at 29 CF.R. � 1614.505 on interim relief, the Agency's final order stated that Complainant would be offered restoration to a position as a City Letter Carrier. Complainant filed an appeal of the Agency's final order.
CONTENTIONS ON APPEAL
In its brief in support of its appeal, the Agency argued that the AJ had made three errors which necessitated reversal of the finding of reprisal discrimination. It first argued that the AJ should have applied the principle of collateral estoppel to the decision of an arbitrator who found that Complainant had violated the Last Chance Agreement, that the removal was justified, and that Complainant had not shown "disparate treatment" with regard to the charge that led to the removal. It also argued that the AJ should have considered that there were two charges against Complainant in the Notice of Removal, both Delay of Mail and Missed Scan, and not just the missed scan of the collection box discussed by the AJ. It noted that Delay of Mail was an infraction which was specifically delineated in the LCA as an offense which would trigger removal. Finally, the Agency argued that the AJ used improper comparator employees when considering whether Complainant was treated differently with respect to being disciplined for missing the collection box, as compared to how other employees who also missed collection boxes were treated. The Agency's position was that the proper comparator employees would be those who were also on a LCA.
Complainant filed a brief in opposition to the Agency's appeal in which he argued that the AJ was correct in not applying the principle of collateral estoppel to the arbitrator's decision on the LCA, because the arbitrator did not consider the issue of discrimination based on reprisal. Complainant was not given the opportunity to fully litigate the underlying discrimination behind the decision to charge Complainant with a violation of the LCA. In the absence of that consideration, the issues litigated were not the exact same such that the arbitrator's decision would dictate the results of the EEO complaint. He argued that the AJ properly considered only the Missed Scan charge cited in the removal, as the Agency had not established that Complainant missing the collection box had actually delayed the delivery of mail to customers. As to the Agency's assertion that the AJ used the incorrect comparator employees, Complainant argued that comparator employees need not be exactly identical, and the fact that the comparator employees used by the AJ were not also on LCAs should not rule out their use. The dispositive part of the comparison is the disparity in discipline issued for missed collection box scans, no matter what stage of progressive discipline an employee may be at. In his brief, Complainant also noted that the Agency's offer of Interim Relief came nearly four months after the AJ's Order of restoration to his position, rather than the 30 days required under the regulations. Complainant requested dismissal of the Agency's appeal based on its failure to comply with 29 CF.R. � 1614.505. Complainant, however, admitted that his request was not made within the 25 days of the date of the Agency's appeal as found at 29 CF.R. � 1614.505(b).
On November 20, 2012, the Agency submitted proof that it had made an offer of interim relief in the form of restoration to a Carrier position to Complainant. The offer was made by the Agency and accepted by Complainant on November 19, 2012.
On August 8, 2013, the Agency filed a Supplemental Brief in which it argued that the U.S. Supreme Court's decision in University of Texas Southwestern Medical Center v. Nassar, 570 U.S. ___, 133 S.Ct. 2517 (2013) also necessitated reversal of the decision. Under the Court's decision to prevail on a retaliation claim, a plaintiff would need to show that a retaliatory motive was the but-for cause of an adverse employment action. The Agency argued that Complainant had not shown that retaliation was the only reason for his removal, and that therefore, under the standard of Nassar he should not prevail.
Complainant filed a brief in response to the Agency's Supplemental Brief in which he argued that he had established that a retaliatory motive was the but-for cause of being issued a Notice of Removal. He argued that as he had shown that the Agency's reasons for his discharge were pretextual, he had satisfied the but-for test in Nassar.
STANDARD OF REVIEW
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive for 29 C.F.R. Part 1614 (MD-110), Chap. 9, at � VI.B. (Nov. 9, 1999).
ANALYSIS AND FINDINGS
We first address Complainant's contention that the Agency did not comply with the interim relief regulation at 29 CF.R. � 1614.505. The Agency belatedly complied with the AJ's Order to restore Complainant to his position. However, it has provided evidence that it has actually restored Complainant to a Carrier position at a Cedar Rapids, Iowa facility, as of November 19, 2012. Complainant's request to dismiss the Agency's appeal was not made within 25 days of the Agency's final order, as required by 29 CF.R. � 1614.505(b), and so we will not dismiss the appeal. However, we caution the Agency that, had Complainant's request been timely, its appeal would have been dismissed. In the future, it should take care to implement any interim relief measures covered by 29 CF.R. � 1614.505 in a timely fashion.
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 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department 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 establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp., supra). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
We find that there is substantial evidence in the record to support the AJ's finding that Complainant had established a prima facie case of reprisal discrimination. Complainant had engaged in EEO activity, S1 and S2 were aware of that activity, and he was issued the Notice of Removal. The EEO activity and removal occurred close enough in time to infer a connection. The AJ also properly found that the Agency offered legitimate, nondiscriminatory reasons for its issuance of the Notice of Removal. The Agency charged Complainant with Delay of Mail and Missed Scan, and cited these as evidence that Complainant had violated his LCA.
We also find that there is substantial evidence in the record to support the AJ's finding that Complainant established that the Agency's reasons for his removal were pretext for discrimination. The AJ heard credible testimony that no other employee had ever been issued discipline for a missed collection box. Agency officials admitted that they had never formally disciplined another employee for a missed scan. We find that the AJ's comparison of the discipline issued Complainant versus any discipline issued to employees not on a LCA was also proper, despite the Agency's arguments to the contrary.
As to the Agency's argument that the decision of an arbitrator should be granted deference, we find that it should not. Complainant filed a grievance over his Notice of Removal, as well as an EEO complaint, as he is entitled to do under 29 CF.R. � 1614.301(c). An arbitrator issued a decision on April 30, 2010, in which she found that Complainant had violated the LCA. Although the arbitrator found that Complainant had not been subjected to "disparate treatment" she did not engage in any analysis in her decision which would examine whether he was discriminated against based on his sex, age or reprisal. Under the doctrine of collateral estoppel, also referred to as claim preclusion, once an issue is decided by a court of competent jurisdiction, that decision precludes re-litigation of the issue in a suit on a different cause of action involving a party to the first case. Bowles v. U.S. Postal Service, EEOC Request No. 0520080751 (July 11, 2008); Magallanes v. Dep't of Justice, EEOC Request No. 05900176 (July 13, 1990). We find that the arbitrator's decision did not actually make a determination on the same issue as is before the Commission, namely, whether Complainant was subjected to unlawful employment discrimination when he was issued a Notice of Removal. The arbitrator's decision was confined to whether the removal should be upheld under the relevant collective bargaining agreement provisions. Therefore collateral estoppel does not apply in this situation.
Finally, the Agency asserts that the Supreme Court's decision in University of Texas Southwestern Medical Center v. Nassar should apply. In that case, the Court analyzed the standard for causation for Title VII retaliation claims, and noted that Congress' specific language in Title VII stating that it is an unlawful employment practice for an employer "to discriminate against any individual ... because of such individual's race, color, religion, sex, or national origin" (emphasis added), required the proper causation standard for retaliation claims to be a "but-for" standard.
However, in Petitioner v. Dep't of Interior, EEOC Petition No. 0320110050 (July 16, 2014), the Commission found that the "but for" standard discussed in Nassar does not apply to retaliation claims by federal sector applicants or employees under Title VII or the ADEA because the relevant federal sector statutory language does not contain the "because of" language on which the Supreme Court based its holdings in Nassar and in Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009) (requiring "but for" causation for ADEA claims brought under 29 U.S.C. � 623). These federal sector provisions contain a "broad prohibition of 'discrimination' rather than a list of specific prohibited practices." See Gomez-Perez v. Potter, 553 U.S. 474, 487-88 (2008) (holding that the broad prohibition in 29 U.S.C. � 633a(a) that personnel actions affecting federal employees who are at least 40 years of age "shall be made free from any discrimination based on age" prohibits retaliation by federal agencies); see also 42 U.S.C. � 2000e-16(a) (personnel actions affecting federal employees "shall be made free from any discrimination based on race, color, religion, sex, or national origin").
In Petitioner v. Dep't of Interior, supra, the Commission clarified the causation standard for retaliation claims under Title VII or the ADEA for federal sector applicants or employees. Specifically, the Commission found that the anti-retaliation provisions make it unlawful to discriminate against any individual because he or she has complained, testified, assisted, or participated in any manner in an investigation, proceeding, hearing, or litigation under the employment discrimination statutes. The Commission reiterated what a complainant must generally do to prove retaliation:
To prevail, Complainant must prove by a preponderance of the evidence that (1) she engaged in protected activity; (2) was subject to an . . . adverse action; and (3) there was a causal nexus between the two. The causal nexus requires a showing that retaliation for her prior protected activity more likely than not caused the challenged actions....
Additionally, 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). For example, 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, supra.
Therefore, we hold that the Supreme Court's decision in Nassar does not require the reversal of the AJ's finding of reprisal discrimination in this case.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final order and direct the Agency to take action in accordance with the ORDER below.
ORDER
Within sixty (60) days of the date this decision becomes final:
1. The Agency shall determine the appropriate amount of back pay, with interest, and other benefits due Complainant since November 19, 2009, pursuant to 29 C.F.R. � 1614.501, no later than sixty (60) calendar days after the date this decision becomes final. Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision."
2. To the extent it has not already done so, the Agency shall offer Complainant restoration to his position as a Carrier Technician in Cedar Rapids, Iowa, or to a substantially equivalent position at a mutually agreed upon Agency location. Complainant has fifteen (15) days to accept or decline the Agency's offer of reinstatement. If Complainant should decline the Agency's offer of reinstatement, the date of his declination shall be the end date for any back pay due Complainant.
3. The Agency shall pay Complainant $10,000 in non-pecuniary compensatory damages.
4. The Agency shall provide training to the responsible management officials regarding their responsibilities under EEO laws, with a special emphasis on retaliation discrimination.
5. 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 employ, the Agency shall furnish documentation of their departure date(s).
6. The Agency shall post a notice of the finding of discrimination 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.
INTERIM RELIEF (F0610)
When the Agency requests reconsideration and the case involves a finding of discrimination regarding a removal, separation, or suspension continuing beyond the date of the request for reconsideration, and when the decision orders retroactive restoration, the Agency shall comply with the decision to the extent of the temporary or conditional restoration of the Complainant to duty status in the position specified by the Commission, pending the outcome of the Agency request for reconsideration. See 29 C.F.R. � 1614.502(b).
The Agency shall notify the Commission and the Complainant in writing at the same time it requests reconsideration that the relief it provides is temporary or conditional and, if applicable, that it will delay the payment of any amounts owed but will pay interest from the date of the original appellate decision until payment is made. Failure of the Agency to provide notification will result in the dismissal of the Agency's request. See 29 C.F.R. � 1614.502(b)(3).
POSTING ORDER (G0914)
The Agency is ordered to post at its Cedar Rapids, Iowa 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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. Filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 12, 2015
Date
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0720120041
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0720120041