0120070046
05-16-2007
David J. Baylink, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
David J. Baylink,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120070046
Agency No. 200N-0605-2005102599
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning his equal employment opportunity (EEO) complaint alleging
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405(a).
During the relevant time, complainant was employed as a Chief at the
agency's Muscular Skeletal Center, Loma Linda Veterans Affairs (VA)
Medical Center in Loma Linda, California. 1
On June 13, 2005, complainant filed a formal EEO complaint. Therein,
complainant claimed that he was subjected to a hostile work environment
on the bases of age and in reprisal for prior EEO activity when:
(A) on May 9 and 27, 2005, he was denied 1-hour change in his duty so
that he could facilitate communication with his technicians and provide
VA patients clinical service;
(B) on May 27, 2005, he was denied VA recognition for receipt of official
certification for honorary membership in the Czech learned society ad
recent significant honors received for professional accomplishment in
research;
(C) on June 2, 2005, he was denied participation at the Orthopedic Surgery
Research Symposium, compromising his scientific and academic career;
(D) when he became aware that [a named agency official], and not
[a named agency physician], was given the responsibility of ORC,
which diminished his charge of Osteoporosis Research Center (ORC) and
facilitated [complainant's first-level Supervisor (S1)'s] attempt to
take over control of ORC;
(E) [S1] would not allow him to participate in manuscripts dealing with
basis research during his administrative leave;
(F) he became aware that one of his senior staff members was forced to
resign by [S1];
(G) while he had not been found guilty of any wrongdoing, [S1] refused
to acknowledge and honor his competence in research, either locally or
centrally within the agency;
(H) [S1] refused to answer his e-mails or to communicate with him during
the 13 months he was on administrative leave; and
(I) he became aware that [Co-worker] had a problem with the IRB but his
problem was addressed by local remedial action whereas his problem was
sent to Office of Research Oversight (ORO) for investigation.
By letters dated June 24, 2005, July 12, 2005 and August 18 and 29,
2005, complainant requested that his complaint be amended to include the
following claims that he was subjected to a hostile work environment on
the bases of age and in reprisal for prior EEO activity when:
(J) on May 24, 2005, he was advised that he was not authorized to write
"papers relevant to [his] patent;"
(K) beginning on August 4, 2005, he was placed on administrative leave,
resulting in reduced ability to provide appropriate services in his
consultancy, which provides remuneration at $12,000 per year;
(L) on June 15 and 20, 2005, management denied him permission to
communicate with VA patent attorneys/marketing institution representative,
thereby jeopardizing the quality of patents and his ability to realize
royalties on these patents;
(M) on July 6, 2005, he was denied a proficiency rating;
(N) he was continuously denied access to Loma Linda Veterans Association
for Research and Education (LLVARE) research money;
(O) on July 5, 2005, he became aware that management denied his due
process with respect to his administrative leave;
(P) during June and July 2005, management contacted Loma Linda University
for the purpose of tainting and diminishing complainant's performance,
reputation and credibility with personnel;
(Q) at the June 2005 Research and Development Committee (R&D) meeting,
management schedule "to call for a vote" that would prohibit complainant
from doing basic research and clinical research;
(R) on July 11, 2005, management commented that VA personnel at VACO
had stated that complainant's "research was not important" in order to
diminish his reputation with personnel;
(S) on August 2, 2005, management informed ORC personnel that complainant
is "not allowed" in the LLU Dual Energy C-ray Absorptiometry (DEXA)
Center premises;
(T) management extended his administrative leave status for longer than
a year with sporadic communication;
(U) [S1] issued a memorandum indicating that the ORO investigation and
ABI investigation are ongoing and the agency is still deliberating on
a course of action; and
(V) [S1] informed complainant that he would be required to take annual
leave in order to attend the American Association of Bone Mineral Research
academic meeting (September 23-27, 2005), and attendance at that meeting
would ordinarily be part of complainant's normal tour of duty.
On October 7, 2005, the agency granted complainant's request to have
his complaint to include claims (J) - (V).
The record reflects that pursuant to an agency audit, the Office of
Research recommended that an Administrative Board of Investigation (ABI)
initiate an investigation into complainant's human research studies for
non-compliance with research regulations and protocols. The record
further reflects that the agency subsequently revoked complainant's
research privileges; reassigned him to a non-research medical position;
and placed him on administrative leave. Upon the ABI's findings of
wrongdoing, the agency issued complainant a 60-day suspension without pay.
Complainant thereafter retired from agency employment.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). When complainant
did not request a hearing within the time frame provided in 29 C.F.R. �
1614.108(f), the agency issued a final decision pursuant to 29 C.F.R. �
1614.110(b).
In its September 6, 2006 final decision, the agency dismissed claims
(E), (H), (I), (N), (O) and (T) on the grounds that these claims are
inextricably intertwined with those claimed in a pending civil action
pursuant to 29 C.F.R. � 1614.107(a)(3). The agency also dismissed claim
(I) on the grounds of failure to state a claim pursuant to 29 C.F.R. �
1614.107(a)(1). The agency dismissed claims (D) and (F) for failure to
state a claim.
With respect to claims (A) - (C), (G), (J) - (M) and (P) - (V), the agency
found no discrimination. The agency found that complainant failed to
establish a prima facie case of age discrimination. The agency found
however that complainant established a prima facie case of reprisal
discrimination. The agency further found that management articulated
legitimate, nondiscriminatory reasons for its actions which complainant
failed to show were a pretext for discrimination.
The agency determined that complainant had also raised a constructive
discharge claim. 2 With respect to this claim, , the agency found
that a review of the record does not show that agency actions, taken
together, were so severe as to constitute a constructive discharge.
As to complainant's harassment claim, the agency determined that
after a thorough review of the record, there was no direct evidence of
harassment.
Regarding claim (A), the record reflects that S1 stated that complainant
was on administrative leave pending the outcome of the ABI investigation.
S1 further stated that complainant was on administrative leave "which
began in August of 2004." S1 stated that in May 2005, complainant
requested a one-hour change in his duty so that he could facilitate
communication with his technicians and provide VA patients clinical
service. S1 stated that because complainant was on administrative leave
"there is no need on the VA's behalf to change it and he did not make
it clear as to what day of the week or what hours he wanted to change."
S1 stated that it was not until later that he realized that complainant
"requested a flexible floating nondefined one hour. So basically
what he said was that he wanted to have a nine-hour tour of duty with
the understanding that basically one hour out of the nine he would be
moonlighting for Loma Linda University."
Further, S1 stated that he denied complainant's one-hour request in
his duty because it would have been inappropriate to make any changes.
S1 stated that the denial of complainant's request "had nothing to do
with his age, it had to do with Federal tour of duty regulations, with
the conflict of interest and outside professional activities regulations,
and I had previously cautioned him that he would need to be very careful
with keeping track of his time because this is one of the areas that the
Inspector General's Office has been monitoring very, very carefully in
terms of holding the VA facilities accountable for what their physicians
are doing during duty hours."
Regarding claim (B), S1 stated that by letter dated August 5, 2004,
complainant was notified that he was being placed on administrative
leave, and that he was not to have any involvement with anything to do
with research. S1 further stated that allowing complainant "to attend
and receive the award did not remove him from being on administrative
leave and it is inappropriate for me to provide recognition and
reinforcement of his research activities during the time that he is
placed on administrative leave and not being allowed to participate in
research activities." Furthermore, S1 stated that complainant was not
subjected to harassment when he was denied recognition for professional
accomplishment in research; and that it had no relationship to his age.
Regarding claim (C), S1 stated that he denied complainant's request
to participate at the Orthopedic Surgery Research Symposium because he
was on administrative leave at that time. Specifically, S1 stated that
if complainant wanted to give a general lecture on orthopedic surgery
that had no relation to his VA research "it was made clear that if he
chose to do that on his personal time there was no problem with that,
but if he chose to present materials related to his VA research that
would be inappropriate on the basis of his being on administrative leave
and prohibited from being involved in any research activities."
The record further reflects that the Administrative Officer (AO) stated
that he advised complainant not to participate at the symposium "because
he was under prohibition by way of this letter." AO further stated
"unfortunately I think he decided to go anyway, but I just felt it wasn't
a wise thing for him to do given that he . . . had this suspension from
activities and stuff."
Regarding claim (G), S1 stated that he refused to acknowledge and honor
complainant's competence in research, either in locally or centrally
within the agency during the time he was on administrative time because
it would have been inappropriate. S1 stated that his decision was not
based "on anything to do with harassment or hostile work environment,
age, reprisal or retaliation, it was based on the conditions of
his administrative leave and the research concerns that were under
investigation during that period of time."
Regarding claim (J), S1 stated that while complainant was on
administrative leave, he was not authorized to write papers relevant to
his patent. Specifically, S1 stated that complainant "was not allowed to
do research, he was not allowed to analyze research, he was not allowed
to publish research, he was not allowed to present research."
Regarding claim (K), S1 stated that there was no change in complainant's
salary when he was placed on administrative leave, and that he was
"informed that there would be no change in his pay, he would be continued
to be paid as a full-time VA physician at his doctor's salary for
sitting at home with no VA requirements." With respect to complainant's
contention that being placed on administrative leave resulted in reduced
ability to provide appropriate services in his consultancy which provides
remuneration at $12,000 per year, S1 stated "the implication is that prior
to that he had been receiving money as a result of his Federal status
and that's an issue I would leave between him and the Inspector General,
but there is nothing that has been done that in any way is intended as
being hostile or retaliation in terms of his pay and his remuneration
and his ability to make a living and an income."
Regarding claim (L), S1 stated that complainant was not denied permission
to communicate with VA patent attorneys and marketing institution
representative in regard to his patent. S1 stated however that
complainant tried to expand his authorized communications with patient
attorneys on June 15 and 20, 2005, which he was not permitted to.
Specifically, S1 stated that complainant attempted to expand "that
authorization to say that, well, to pursue the patent I'd have to be
able to write papers, I have to be able to do more research, I'd have to
be able to get back into all of my research activity, and it was made
explicitly clear to him that he could meet with the patient attorneys,
he could discuss the material that resulted in the filing of the patents
with them, he could provide clarification and direction, but that was
not authorization to begin writing papers, doing research, supervising
employees, writing new grants and all kinds of other expanded research
activities that had been prohibited back in August of 2004."
The record further reflects that AO stated that for a long period of time
complainant was allowed to have communication with VA patent attorneys
in regard to his patent. AO further stated that at one point complainant
wanted to pursue new avenues of research, he was going to use the patent
issue to continue research and "I think that's why at some point in time
that there was a prohibition of against him continuing any further, but
he was allowed to communicate for quite a long time on patent issues and
to finalize and to send manuscripts and comment and things like that,
but at some point in time I think it was - - there was a finalization
or a prohibition and it was simply due to the fact that he wanted to
actually start new research based on the patent issues."
Regarding claim (M), S1 stated that on July 6, 2005, complainant's
proficiency rating was delayed because he was on administrative leave.
S1 further stated that complainant had been on administrative leave "for
the majority, essentially the entire rating period." S1 further stated
that management sought guidance form Human Resources as to whether it
would be appropriate to issue complainant a proficiency rating during
the time he was on administrative leave and "during the time that the
concerns that required him to be placed on administrative leave were
still undergoing jurisdiction." S1 stated that the response from Human
Resources "was that it would be inappropriate and that the proficiency
rating should be deferred until the issues had been resolved."
Regarding claim (P), S1 stated that Loma Linda University is the agency's
academic affiliate, and that a majority of agency physicians, including
complainant, have academic appointments at the university. S1 further
stated that there is a signed sharing agreement "whereby many of the
staff rotate between the two facilities and as a result there is a lot of
ongoing activity between the two institutions and a lot of interactions
in many different areas." S1 stated "obviously with [complainant]
having been a very prominent and very productive research investigator,
the change in his duty status necessitated certain discussions between
the University and between the VA, none of those have ever been done
for the purpose of harassment, discrediting or in any other way trying
to cause reprisal or anything else on [complainant]."
Regarding claim (Q), S1 stated that during the June 2005 time period,
a final report was expected to come out of the ORO relating to its
findings of what had gone on with complainant and "was approaching
the time that the Administrative Board of Investigation was completing
theirs." S1 stated that R&D Committee "is a committee that is responsible
for activities within research and enduring that there is compliance
within research and it's appropriate for them to be aware when there
are compliance issues; however, it does not have any HR jurisdictions,
it is simply dealing with the research issues and whether they're being
handled appropriately, it doesn't have hiring and firing authority,
it doesn't have any personnel authority." S1 stated that at the June
2005 R &D meeting, there were discussions concerning the findings of
complainant's research impropriety; and that there were "no specific
votes at the committee in terms of what he would be doing within research,
those issues ended up coming under the HR jurisdiction, so at that point,
then, because there's no HR jurisdiction for the R&D Committee to have
votes on what his activities would be become an irrelevant issue."
Regarding claim (R), S1 stated that he does not have any knowledge of the
content of complainant's claim that on July 11, 2005, management commented
that VA personnel at VACO had stated that his research was not important
in order to diminish his reputation with personnel. Specifically, S1
stated "as to without knowing who it is claimed to have made the comment
or what the context of that comment was or who the audience was how that
would then affect his reputation is completely unclear."
Regarding claim (S), S1 stated that if complainant "needed to go to ORC
to pick up studies for interpretation, there's no problem with that kind
of a request." S1 further stated for complainant "to spend additional
time in ORC socializing and interacting with the staff," it would have
been inappropriate under the terms of his administrative leave.
The record further reflects that AO stated that while complainant was
prohibited from engaging in research activities, there was "no need for
him to be in research space."
Regarding claim (U), S1 stated that complainant was given notification
"as to where things were at, but he had been involved in the discussions,
he was asked to testify before the Administrative Board, so he had a
moderate idea as to where things were at and even thought that he was
not left in a vacuum and would have had ongoing correspondence on an
occasional basis during his administrative leave."
Regarding claim (V), AO stated that even though he advised complainant
not to attend the American Association of Bone Mineral Research academic
meeting because it was related to research activity, complainant "did
go, but he didn't take annual leave, he took sick leave." Specifically,
AO stated that complainant "doesn't take no very well so he had decided
there was a decision for him to go, I guess he had decided to take annual
leave or said he was going to take annual leave but apparently he used
sick leave, what he used for this bone meeting was actually sick leave."
Failure to State a Claim - Claims (D), (F) and (I)
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she
has been discriminated against by that agency because of race, color,
religion, sex, national origin, age or disabling condition. 29 C.F.R. ��
1614.103, .106(a). The Commission's federal sector case precedent has
long defined an "aggrieved employee" as one who suffers a present harm
or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994).
Upon review, the Commission finds that the agency properly dismissed
claims (D), (F) and (I) for failure to state a claim. Specifically, the
Commission finds that claims (D), (F) and (I) pertain to complainant's
co-workers and do not involve personal harm or loss to complainant.
Because we affirm the agency's dismissal of claim (I) for the reason
stated above, it is unnecessary to address the agency's dismissal of this
claim on alternative grounds (i.e. same matter raised in a civil action).
Civil Action - Claims (E), (H), (N), (O) and (T)
The regulation set forth at 29 C.F.R. � 1614.409 provides that the filing
of a civil action "shall terminate Commission processing of the appeal."
Commission regulations mandate dismissal of the EEO complaint under these
circumstances so as to prevent a complainant from simultaneously pursuing
both administrative and judicial remedies on the same matters, wasting
resources, and creating the potential for inconsistent or conflicting
decisions, and in order to grant due deference to the authority of
the federal district court. See Stromgren v. Department of Veterans
Affairs, EEOC Request No. 05891079 (May 7, 1990); Sandy v. Department of
Justice, EEOC Appeal No. 01893513 (October 19, 1989); Kotwitz v. USPS,
EEOC Request No. 05880114 (October 25, 1988).
Therein, the agency dismissed claims E), (H), (N), (O) and (T) the grounds
that these claims are inextricably intertwined with those claimed in a
pending civil action pursuant to 29 C.F.R. � 1614.107(a)(3). However,
the record in this case does not contain a copy of complainant's
civil action identified by the agency in its final decision. It is
the burden of the agency to have evidence or proof in support of its
final decision. See Marshall v. Department of the Navy, EEOC Request
No. 05910685 (September 6, 1991). Consequently, the Commission finds
that the agency improperly dismissed claims (E), (H), (N), (O) and (T)
on the grounds that these claims are inextricably intertwined with those
claimed in complainant's pending civil action.
Disparate Treatment - Claims (A) - (C), (G), (J) - (M) and (P) - (V)
A claim of disparate treatment is examined under the three-party analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima facie
of discrimination by presenting facts that, if unexplained, reasonably
give rise to an inference of discrimination, i.e., that a prohibited
consideration was a factor in the adverse employment action. See
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. See Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Once the agency has met its burden, the complainant bears the ultimate
responsibility to persuade the fact finder by a preponderance of the
evidence that the agency acted on the basis of a prohibited reason.
See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
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
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The Commission finds that the agency articulated legitimate,
nondiscriminatory reasons for its actions. Complainant has not proven,
by a preponderance of the evidence, that the agency's articulated reasons
were a pretext for discrimination.
Harassment - Claims (A) - (C), (G), (J) - (M) and (P) - (V)
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion
is unlawful, if it is sufficiently severe or pervasive. Wibstad
v. United States Postal Service, EEOC Appeal No. 01972699 (August 14,
1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997). It is also well-settled that harassment based on an
individual's prior EEO activity is actionable. Roberts v. Department
of Transportation, EEOC Appeal No. 01970727 (September 15, 2000).
A single incident or group of isolated incidents will generally not
be regarded as discriminatory harassment unless the conduct is severe.
Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether
the harassment is sufficiently severe to trigger a violation of Title
VII must be determined by looking at all of the circumstances, including
the frequency of the discriminatory conduct, its severity, whether it is
physically threatening or humiliating, or a mere offensive utterance, and
whether it unreasonably interferes with an employee's work performance.
Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement
Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002
(March 8, 1994) at 3, 6. The harassers' 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 (March 8, 1994).
Applying these principles to the facts in this case, we concluded that
the record does not support a determination that the alleged incidents
constituted a discriminatory hostile work environment. With regard to
the claim of constructive discharge, we find that the record does not
show that the actions, taken together, were so severe as to constitute
a constructive discharge.
In summary, the agency's dismissal of claims (D), (F) and (I) for failure
to state a claim is AFFIRMED. The agency's finding of no discrimination
and harassment concerning claims (A) - (C), (G), (J) - (M) and (P) -
(V) is AFFIRMED. The agency's dismissal of claims (E), (H), (N), (O)
and (T) on the grounds that these claims are inextricably intertwined
with those claimed in complainant's pending civil action is REVERSED.
Claims (E), (H), (N), (O) and (T) are REMANDED to the agency for further
processing in accordance with the Order below and applicable regulations.
ORDER (E0900)
The agency is ordered to process the remanded claim (claims (E), (H), (N),
(O) and (T)) in accordance with 29 C.F.R. � 1614.108. The agency shall
acknowledge to the complainant that it has received the remanded claims
within thirty (30) calendar days of the date this decision becomes final.
The agency shall issue to complainant a copy of the investigative file
and also shall notify complainant of the appropriate rights within one
hundred fifty (150) calendar days of the date this decision becomes
final, unless the matter is otherwise resolved prior to that time.
If the complainant requests a final decision without a hearing, the
agency shall issue a final decision within sixty (60) days of receipt
of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 19848, Washington,
D.C. 20036. 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 (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (T0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
May 16, 2007
__________________
Date
1 The record reflects that effective January 4, 2006, complainant retired
from agency employment.
2 The agency noted that initially complainant did not raise the
constructive discharge/retirement claim in his formal complaint.
Specifically, the agency stated that by the time his claims were being
investigation, complainant claimed that he had involuntarily retired from
agency employment. Thus, the agency determined that it would address
complainant's constructive discharge/retirement claim herein.
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0120070046
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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