0120111119
06-28-2013
Debra S. Struppler, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Debra S. Struppler,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120111119
Hearing No. 530-2009-00116X
Agency No. 4C-250-0067-08
DECISION
On December 4, 2010, Complainant filed an appeal from the Agency's November 2, 2010, final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. The Commission accepts the appeal timely pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission MODIFIES the Agency's final order.
ISSUE PRESENTED
The issue presented is whether substantial evidence of record supports the AJ's award of back pay and non-pecuniary compensatory damages to Complainant.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Financial Control and Support Analyst at the Agency's Appalachian District Office in Charleston, West Virginia.
On September 23, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of sex (female) when:
1. on May 12, 2008, she was not included in an informational teleconference;
2. on May 16, 2008, she was not permitted a face-to-face interview for the Manager, Financial Control and Support, EAS-21, position;
3. on or about May 30, 2008, she was not provided a detail opportunity to the position of Manager, Financial Control and Support; and
4. on or about July 1, 2008, she learned she had not been selected for the Manager, Financial Control and Support, position.
In the affidavit that she provided to the EEO Investigator, Complainant stated that the Manager of Finance (Selecting Official) caused her anxiety and humiliation and that the Manager of Budget and Financial Analysis (Manager) contributed to it by spreading rumors about her and her family. She also stated that she contacted the Employee Assistance Program (EAP) and was still "being treated for stress, not sleeping and anxiety from this situation." In addition, Complainant stated that she "was prescribed medication due to the discriminatory acts committed against me." Report of Investigation (ROI) Affidavit (Aff.) A at 13-14.
The record contains copies of July 23, 2008, receipts for two prescription medications. Id. Exhibit (Exh.) 35. The record also contains a July 21, 2008, medical note in which a registered nurse states, "Due to medical reasons, [Complainant] may not return to work until July 28, 2008 or until further notice." Id. Exh. 32. A July 28, 2008, note from a doctor at a counseling center recommends that Complainant remain out of work until August 11, 2008. Id. Exh. 34 at 1. In an August 8, 2008, note, the doctor states that Complainant has been under his care since July 21, 2008, "for work related stressors" and recommends that Complainant remain out of work until August 18, 2008. Id. at 2. In an August 12, 2008, Family and Medical Leave Act (FMLA) form, the doctor stated that the probable duration of Complainant's condition was from July 21 to August 8, 2008, noted that Complainant would periodically need to be absent from work to "reduce stress and attend . . . appointments," and estimated that her treatment and periodic absences would last from six to eight months. Id. at 3-5.
At the conclusion of the EEO investigation, the Agency provided Complainant with a copy of the Report of Investigation and notice of her right to request a hearing before an EEOC Administrative Judge. Complainant timely requested a hearing, and the AJ held a hearing on April 21-22, 2010. In her Prehearing Statement, Complainant requested the following remedy:
[Complainant] requests that she be "made whole" and all monies owed her for not being given an equal opportunity to compete for this position be effective from the date the position was awarded to [the selectee], July 1, 2008, and she be awarded a position of EAS-21 with all back pay and 5% interest from the date of July 1, 2008. Additionally, other damages requested are three hundred thousand dollars ($300,000) for the pain, suffering and humiliation caused by [the Selecting Official, the Manager, the selectee, and the Acting Manager of Human Resources] and all monies for doctor services and medication dating back to her notification of "non-selection," (approximately one thousand dollars ($1,000).
At the hearing, Complainant testified that the Agency reorganized the Finance Department in December 2009. She stated that the Agency eliminated all of the Financial Control and Support Analyst positions as well as the Manager, Financial Control and Support, position. According to Complainant, employees in the Department applied for new jobs and were in their new positions on January 2, 2010. Complainant acknowledged that, if she had been selected for the position of Manager of Financial Control and Support, she would have had to apply for a new job after the position was eliminated. Hearing Transcript 1 (HT-1) at 390-92; Hearing Transcript 2 (HT-2) at 15-19.
Complainant also testified that, in July 2008, she sought help from the Employee Assistance Program and was referred to a counselor. HT-1 at 328-29; HT-2 at 27-28. Id. She stated that she sought counseling because she was stressed out and sick and because of the way she felt about "not [being] given an equal opportunity on numerous things," including not being notified about an important teleconference, being denied a face-to-face interview for the position at issue, and the way she found out about her non-selection for the position. HT-1 at 329-31. She asserted that the Manager spread rumors that she was having marital problems and that this also contributed to her anxiety and humiliation. HT-1 at 331, 389; HT-2 at 31-32. In addition, Complainant testified that she took leave in July 2008 because of the stress related to her non-selection and that dealing with Labor Relations regarding the leave also was a stressor. HT-1 at 377, 390. She stated that she could not eat, could not sleep, and was having anxiety attacks "because of the way [she] was treated so unfairly with every aspect of this position." HT-2 at 28-29. Complainant testified that her family doctor prescribed medication for stress and that she was still receiving treatment at the time of the hearing. HT-1 at 332-33; HT-2 at 30.
In a decision issued on September 24, 2010, the AJ found that Complainant had established that the Agency discriminated against her on the basis of sex when it did not select her for the Manager, Financial Control and Support, position. The AJ concluded that Complainant had not established that the Agency subjected her to sex discrimination with respect to the teleconference, interview, and detail opportunity.
The AJ ordered, among other remedies, that the Agency pay Complainant back pay with interest for the period June 26, 2008, through December 31, 2009. In determining the back pay award, the AJ noted that Complainant testified that the Agency abolished the Manager, Financial Control and Support, position during a December 2009 restructuring and that incumbents had to apply for new positions that began on January 2, 2010.
The AJ also ordered the Agency to pay Complainant $1,500 in non-pecuniary compensatory damages. He noted that Complainant testified that, because of the stress caused by her non-selection, she contacted EAP and sought treatment from an EAP counselor. The AJ stated that Complainant did not offer any medical documentation to support her request for compensatory damages. In addition, he concluded that Complainant "failed to offer any evidence reflecting any specific out-of-pocket expenses incurred as a result of her non-selection." Accordingly, he declined to award pecuniary damages. Because Complainant was not represented by an attorney during the investigation or hearing, the AJ did not award attorney's fees and costs.
The Agency subsequently issued a final order fully implementing the AJ's decision. Complainant then filed the instant appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant, through her attorney, challenges the remedy awarded with respect to "her salary, her pay grade, and the amount of damages awarded for pain and suffering." In addition, Complainant asks the Commission to award her attorney's fees and costs associated with the appeal. She does not challenge other aspects of the remedy and does not appeal the findings that the Agency did not discriminate against her with respect to the teleconference, interview, and detail opportunity.1
Complainant argues that the back pay award does not provide her with make-whole relief and that the AJ erroneously limited the award to the date that the Manager, Financial Control and Support, position was abolished. She argues that the Agency's final order should have modified the award to reflect the Agency's policies concerning reductions-in-force (RIFs). Complainant asserts that the Agency's Employee and Labor Relations Manual (ELM) provides that employees who lose their positions due to a RIF are entitled to two years of "save-pay and save-grade from the effective date of the demotion, in this case January 2, 2010." She also asserts that the Agency's "RIF policies in place during the 2009 RIF provided for indefinite save pay." She argues that she should be placed in the Manager, Financial Control and Support, position retroactive to June 26, 2008, should remain in the EAS-21 grade at least until January 2, 2010, and should "receive the benefit of EAS Level 21 pay indefinitely."
Complainant submits an excerpt from the Agency's November 2009 ELM and argues that the Commission is required to take judicial notice of the contents of the ELM. Complainant also submits copies of "Reduction in Force (RIF) - General Inquiries," an April 4, 2004, Postmaster General Memorandum regarding PCES and EAS Employees Impacted by Organizational Change Reduction-in-Force: Change in Pay and Benefits Policy," and an April 24, 2009, "Reduction in Force RIF Avoidance and RIF Frequently Asked Questions (FAQ's)." She argues that these documents should not be considered new evidence because she did not know that the AJ would limit her relief. She also argues that the Agency would not be prejudiced by consideration of the documents because they reflect the Agency's own policies.
In addition, referring to the medical statements and pharmacy bills in the Report of Investigation, Complainant argues that the AJ erroneously stated that she failed to offer medical documents to support her claim for compensatory damages. She asserts that she should receive non-pecuniary compensatory damages in the range of $50,000 to $75,000. In support of her claim, Complainant cites a number of Commission cases awarding damages in the $25,000 to $75,000 range.
In response, the Agency argues that the documents Complainant submitted on appeal constitute new evidence and that she has failed to demonstrate that the information was not available at the time of the hearing. The Agency also argues that Complainant has not demonstrated that the ELM policies she cites would have applied to her situation and has offered no proof of the authenticity or applicability of the other documents.
With respect to Complainant's claim for compensatory damages, the Agency argues that the medical documents cited by Complainant do not establish a factual connection between the non-selection at issue here and Complainant's symptoms. The Agency asserts that it is undisputed that Complainant experienced work-related stressors separate from her non-selection. In that regard, the Agency the notes that Complainant testified that she sought treatment through the Agency's EAP for a number of reasons, including the matters on which the AJ found no discrimination, her return home from a detail assignment, and the Manager's alleged spreading of rumors about her marriage. The Agency argues that the AJ's award of $1,500 in compensatory damages is consistent a number of cited Commission cases in the $1,000 to $1,500 range.
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. See 29 C.F.R. � 1614.405(a). 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 (EEO MD-110), Chap. 9, at � VI.B. (Nov. 9, 1999).
ANALYSIS AND FINDINGS
Back Pay
When discrimination is found, the Agency must provide Complainant with a remedy that constitutes full, make-whole relief to restore her as nearly as possible to the position she would have occupied absent the discrimination. See, e.g., Franks v. Bowman Transp. Co., 424 U.S. 747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975); Adesanya v. U.S. Postal Serv., EEOC Appeal No. 01933395 (July 21, 1994). It must therefore provide a remedy unless it can show, by clear and convincing evidence, that Complainant would not have been entitled to that remedy even absent discrimination. Brown v. Dep't of the Navy, EEOC Petition No. 0420120012 (June 5, 2013) (citing Davis v. Dep't of Justice, EEOC Request No. 05931205 (Sept.1, 1994); Day v. Matthews, 530 F.2d 1083, 1085 (D.C. Cir. 1976)); see also 29 C.F.R. � 1614.501(c)(2).
The purpose of a back pay award is to restore to Complainant the income she would have otherwise earned but for the discrimination. See Albemarle Paper Co.; Davis v. U.S. Postal Serv., EEOC Petition No. 04900010 (Nov. 29, 1990). Back pay should include all forms of compensation and must reflect fluctuations in working time, overtime rates, penalty overtime, Sunday premium and night work, changing rate of pay, transfers, promotions, and privileges of employment to which Complainant would have been entitled but for the discrimination. See Ulloa v. U.S. Postal Serv., EEOC Petition No. 04A30025 (Aug. 3, 2004) (citing Allen v. Dep't of the Air Force, EEOC Petition No. 04940006 (May 31, 1996)); Perez v. U.S. Postal Serv., EEOC Petition No. 04A40041 (Mar. 3, 2005).
The Commission recognizes that precise measurement cannot always be used to remedy the wrong inflicted and that the computation of back pay awards inherently involves some speculation. Hanns v. U.S. Postal Serv., EEOC Petition No. 04960030 (Sept. 18, 1997). Nonetheless, uncertainties involved in a back pay determination should be resolved against the Agency, which has already been found to have committed the acts of discrimination. Id.; see also Kloock v. U.S. Postal Serv., EEOC Petition No. 04A40012 (June 16, 2004).
In this case, the Agency implemented the AJ's finding that the Agency discriminated against Complainant on the basis of sex when it did not select her for the Manager, Financial Control and Support, EAS-21, position. The Agency, therefore, must provide Complainant with make-whole relief that places her in the position she would have occupied absent the discrimination. This means that the Agency must provide Complainant with all compensation, benefits, and privileges, including any "save pay" or "save grade" compensation and benefits, that Complainant would have received had she been selected for the position.
The Agency's argument that Complainant has failed to demonstrate that Agency policies regarding "save pay" and "save grade" would have applied to her situation misconstrues the burden of proof. Having been found to have discriminated against Complainant, the Agency bears the burden of showing that Complainant would not have been entitled to such compensation and benefits even absent discrimination. See Brown v. Dep't of the Navy, EEOC Petition No. 0420120012 (June 5, 2013); Davis v. Dep't of Justice, EEOC Request No. 05931205 (Sept.1, 1994). The Agency's assertion that Complainant has submitted new evidence on appeal does not absolve the Agency of its obligation to calculate accurately the compensation owed to Complainant.
Complainant is entitled to make-whole relief and to all compensation that she would have received absent the discrimination. Given the discussion about Complainant's entitlement to "save pay" and "save grade" compensation, we will modify the remedy ordered in this case to clarify that make-whole relief includes all "save pay" and "save grade" compensation and benefits that she would have received if she had been selected for the Manager, Financial Control and Support, EAS-21, position. In addition, because the AJ awarded back pay from June 26, 2008, through December 31, 2009, and Complainant seeks back pay until January 2, 2010, we will direct the Agency to determine the date on which Complainant's tenure as the Manager of Financial Control and Support would have ended if she had been chosen for the position. The Agency shall pay Complainant back pay for the period June 26, 2008,2 until the date that her tenure in the position would have ended and shall place Complainant in the same "save pay" and "save grade" status that she would have occupied absent the discrimination. The Agency shall provide supporting documentation concerning the back pay calculation, including "save pay" and "save grade" compensation and benefits, and the end date of the Manager, Financial Control and Support, position.
Non-Pecuniary Damages
Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant who establishes unlawful intentional discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. � 2000e et seq., may receive compensatory damages for past and future pecuniary losses (i.e., out-of-pocket expenses) and non-pecuniary losses (e.g., pain and suffering, mental anguish) as part of make-whole relief. 42 U.S.C. � 1981a(b)(3). In West v. Gibson, 527 U.S. 212 (1999), the Supreme Court held that Congress afforded the Commission the authority to award compensatory damages in the administrative process. For an employer with more than 500 employees, such as the Agency, the limit of liability for future pecuniary and non-pecuniary damages is $300,000. 42 U.S.C. � 1981a(b)(3).
To receive an award of compensatory damages, Complainant must demonstrate that she has been harmed as a result of the Agency's discriminatory action; the extent, nature, and severity of the harm; and the duration or expected duration of the harm. Rivera v. Dep't of the Navy, EEOC Appeal No. 01934157 (July 22, 1994), request for reconsideration denied, EEOC Request No. 05940927 (Dec. 8, 1995); Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 (Guidance) (July 14, 1992), at 11-12, 14. Objective evidence in support of a claim for non-pecuniary damages includes statements from Complainant and others, including family members, co-workers, and medical professionals. See Guidance at 12-13; Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993). An agency is responsible only for those damages that are clearly shown to be caused by the discriminatory conduct. Rivera v. Dep't of the Navy. Complainant bears the burden of showing that her injury is causally connected to her non-selection. Resnick v. Dep't of Homeland Security, EEOC Appeal No. 07A20040 (Oct. 30, 2003) (citing Wallis v. U.S. Postal Serv., EEOC Appeal No. 0950510 (Nov. 13, 1995)).
Non-pecuniary damages must be limited to compensation for the actual harm suffered as a result of the Agency's discriminatory actions. See Guidance at 13. Additionally, the amount of the award should not be "monstrously excessive" standing alone, should not be the product of passion or prejudice, and should be consistent with the amount awarded in similar cases. See Jackson v. U.S. Postal Serv., EEOC Appeal No. 01972555 (Apr. 15, 1999) (citing Cygnar v. City of Chicago, 865 F. 2d 827, 848 (7th Cir. 1989)).
In this case, the record contains doctor statements noting that Complainant was being treated for "work-related stressors" and needed to be absent from work to reduce stress and attend appointments. Complainant testified that her doctor prescribed medication for stress. In addition, Complainant testified that she had problems eating and sleeping and experienced anxiety attacks because of the way the Agency treated her with respect to "every aspect of this position." HT-2 at 28-29. She also testified that she was stressed out and sick about a number of things, including actions that the AJ found not to be discriminatory, and that other work-related matters contributed to her symptoms. Thus, although the evidence establishes that Complainant was harmed by the discriminatory non-selection, it also establishes that other matters contributed to the harm.
Given that other matters contributed to Complainant's condition, and having reviewed the entire record, we find that the AJ's award of $1,500 in non-pecuniary damages is reasonable and appropriate. This amount takes into account the severity of the harm caused by Complainant's non-selection and is consistent with prior Commission precedent. See, e.g., Minor v. U.S. Postal Serv., EEOC Appeal No. 0120103711 (May 17, 2012) ($1,500 in non-pecuniary damages awarded where the only objective evidence to support complainant's claim for damages were his own statements, the statements addressed several alleged discriminatory acts, and complainant was entitled to damages only for harm resulting from supervisor's interference with EEO process); Estate of Curtis L. Burns v. Dep't of Homeland Security, EEOC Appeal No. 0120082743 (Dec. 27, 2012 ($1,000 in non-pecuniary damages awarded where complainant provided non-specific evidence that denial of reasonable accommodation caused depression, anxiety, inability to function in daily life, and inability to participate in social activities but presented no medical evidence or testimony from friends or family); Lee v. U.S. Postal Serv., EEOC Appeal No. 0120091395 (Apr. 15, 2009) ($1,000 in non-pecuniary damages awarded where complainant testified that denial of requested schedule change caused stress and exacerbated his difficulty in sleeping); Seda v. U.S. Postal Serv., EEOC Appeal No. 0720050090 (Mar. 20, 2007) ($1,500 in non-pecuniary damages awarded where complainant provided limited, non-descriptive testimony about emotional distress resulting from agency's retaliatory denial of request for leave); Resnick v. Dep't of Homeland Security, EEOC Appeal No. 07A20040 (Oct. 30, 2003) ($2,000 in non-pecuniary damages awarded for retaliatory non-selection where complainant claimed that she experienced sleeplessness and depression, complainant's evidence showed that most of her injury was due to other work-related problems, and there was little evidence linking the emotional distress to the discriminatory non-selection rather than other alleged discriminatory acts). This amount is adequate to compensate Complainant for the harm suffered as a result of the discriminatory non-selection, is not "monstrously excessive," and is consistent with the amount awarded in similar cases.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we MODIFY the Agency's final order. The Agency is required to comply with the order below.
ORDER (D0610)
The Agency is ordered to take the following remedial action within thirty (30) calendar days of the date this decision becomes final:
1. The Agency shall pay to Complainant all back pay, with interest, and benefits that she would have received in the absence of discrimination. Back pay shall be paid for the period commencing June 26, 2008, until the date that Complainant's tenure as the Manager of Financial Control and Support would have ended. Back pay shall be computed in conformity with 5 C.F.R. � 550.805. Benefits required to be restored to make Complainant whole include, but are not limited to, the following: seniority; sick and annual leave; health and life insurance; and any save pay, save grade, in-grade step(s), and/or promotion(s) to which she would have been entitled. 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 about the amount of back pay, interest due, and/or other benefits, the Agency shall issue a check to Complainant for the undisputed amount within 60 calendar days of the date this decision becomes final. Complainant may petition for enforcement or clarification of the amount in dispute. This petition must be sent to the Compliance Officer as referenced in the implementation paragraph below.
2. The Agency shall place Complainant in the same "save pay" and "save grade" status that she would have occupied absent the discrimination.
3. The Agency shall post a notice in accordance with the paragraph below.
4. The Agency shall provide two three-hour training courses related to sex discrimination to the Selecting Official.
5. The Agency shall consider taking appropriate disciplinary action against the responsible management officials. 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 pay Complainant $1,500 in compensatory damages.
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 of the Agency's calculation of back pay and other benefits due Complainant, including evidence that the corrective action has been implemented.
POSTING ORDER (G0610)
The Agency is ordered to post at its Appalachian District Office copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted by the Agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (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 ten (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)), she 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
June 28, 2013
Date
1 We note that the Commission exercises its discretion to review only the issues specifically raised in Complainant's appeal and declines to review uncontested aspects of the Agency's final order. EEOC Management Directive for 29 C.F.R. Part 1614, Chap. 9, at � IV.A (Nov. 9, 1999) ("Although the Commission has the right to review all of the issues in a complaint on appeal, it also has the discretion not to do so and may focus only on the issues specifically raised on appeal.").
2 Neither party has appealed the start date of the back pay award.
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0120111119
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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