David J. Baylink, Complainant,v.R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMay 16, 2007
0120070046 (E.E.O.C. May. 16, 2007)

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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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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