0720120023
01-16-2013
Dennis Johnson, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Dennis Johnson,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0720120023
Hearing No. 430200900195X
Agency No. 200I05442008103470
DECISION
Following its March 13, 2012, final order, the Agency filed a timely appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405(a). On appeal, the Agency requests that the Commission affirm its rejection of an EEOC Administrative Judge's (AJ) finding of discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. The Agency also requests that the Commission affirm its rejection of the relief ordered by the AJ.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Temporary Housekeeping Aid at the Agency's Dorn Veterans Administration Medical facility in Columbia, South Carolina.
On July 28, 2008, Complainant filed an EEO complaint alleging:
1. that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity when, from August 7, 2007 to February 15, 2008, he was not selected for a permanent position although Housekeeping Aid positions were filled; and
2. he was subjected to retaliatory harassment when: (a) from November 26, 2007 to February 15, 2008, he was routinely stalked and harassed by his supervisors; and (b) on or about December 14, 2007, his supervisor belittled him and yelled at him in front of other patients and employees, while he was waiting at the Emergency Room to see his care provider.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing.
Following the hearing conducted on January 19, 2012, the AJ issued a decision on February 7, 2012, finding that Complainant established a prima facie case of reprisal as alleged when he was not selected for a permanent Housekeeping Aid position, and when he was stalked, belittled and yelled at by his supervisor in front of patients and other employees. In reaching this conclusion, the AJ determined that the Agency's articulated reasons for its conduct were a pretext for unlawful retaliation. Consequently, the AJ ordered the Agency to immediately place Complainant in a permanent Housekeeping Aid position, provide Complainant back pay from the date of the non-selection at issue in this matter until the date that he is reemployed, and award Complainant compensatory damages in the amount of $32,500. The Agency subsequently issued a final order rejecting the AJ's finding that Complainant proved that he was subjected to reprisal discrimination.
Non-Selection
At the time of events giving rise to this complaint, Complainant worked as a Temporary Housekeeping Aid. The AJ determined the following additional facts in reaching her decision.
On September 24, 2007, Complainant applied for a permanent Housekeeping Aid position under Vacancy Announcement 07-194A. Human Resources reviewed Complainant's application and referred him to his then-supervisor for an interview. Complainant's supervisor forwarded a memorandum to Human Resources advising that Complainant's application should be declined and that Complainant would not be interviewed. In his memorandum, Complainant's supervisor indicated the following as the basis for his decision not to interview Complainant for the permanent Housekeeping Aid position:
[Complainant] has been employed as a temporary Housekeeping Aid at the medical center since 7/23/07. During that time, he has been excessively late and missing from work.
The record further indicates that when Complainant followed up on the status of his application, he was advised that he had not been selected for any of several permanent housekeeper positions. According to the record, Complainant admitted being absent, but explained that his absences had been for medical treatment or hospitalization for a severe medical condition. Complainant further testified that he believed that most of his absences were excused because he had provided his supervisor documentation from his physician verifying the dates of treatment and the dates he was hospitalized. The record indicates that Complainant's supervisor confirmed that although he had received medical documentation from Complainant, he did not submit them to his manager, did not compare the dates covered by the medical documentation with the dates Complainant was absent, and did not save the documentation provided by Complainant in any file or folder.
The record further indicates that despite providing medical documentation to support the majority of his absences, Complainant was issued a Notice of Termination on November 9, 2007 for absenteeism. After issuing the Notice of Termination, Complainant's supervisor provided his manager with the medical documentation submitted by Complainant. Thereafter, Complainant's Notice of Termination was rescinded because most of Complainant's absences should have been excused for medical reasons. However, on November 19, 2007, notwithstanding that the termination being rescinded, Complainant initiated an EEO complaint alleging that his supervisors subjected him to unlawful discrimination based on race when they erroneously terminated his employment.
On January 23, 2008, after he was not selected for the permanent positions, Complainant was issued a written counseling advising that if his attendance did not improve, he would be placed on Sick Leave Restriction. Despite the fact that Complainant's Notice of Termination was rescinded after determining that most of Complainant's absences were excused, the Agency referenced those same absences in the January 23, 2008 written counseling. However, instead of being placed on restriction as the Agency had warned, Complainant's employment was terminated on February 15, 2008.
In assessing the documentary and testimonial evidence of record, the AJ found that Complainant established a prima facie case of discrimination as alleged. Specifically, the AJ noted that upon entering duty with the Agency, Complainant submitted documentation verifying that he was a disabled veteran with a 100% disability rating. As such, the AJ determined that the Agency should have reasonably anticipated that Complainant would be absent due to illness and to seek medical treatment or for hospitalization. Despite admitting to receiving several medical documents excusing his absences, Complainant's supervisor admitted that he did not submit all of the medical documentation provided by Complainant to his managers.
The AJ determined that while the Agency avers that excessive absenteeism was the legitimate business reason for not selecting Complainant for a permanent position, the veracity of the Agency's rationale was compromised by the behavior and testimony of Complainant's supervisors. Specifically, the AJ noted that Complainant's supervisors failed to keep an accurate accounting of medical documentation provided by Complainant, and factored excused absences into its charges of poor attendance. The AJ further determined that Complainant was not selected for one of the Housekeeping Aid positions primarily based on the memorandum written by his supervisor regarding Complainant's excessive absenteeism. Moreover, the record indicates that Human Resources did not solicit the memorandum from Complainant's supervisor. Rather, the AJ determined that he independently provided this negative reference in an effort to thwart Complainant from being selected for one of the permanent positions.
Stalking/Harassment
The record indicates that on December 14, 2007, before his shift began, Complainant visited the Agency's Employee Health Clinic. Because his scheduled appointment was taking longer than expected, Complainant asked the physician to contact his supervisor to advise him that Complainant would be late. The physician contacted Complainant's supervisor, and advised that Complainant was in the medical clinic, and that he would report to work shortly after his appointment had concluded. Despite Complainant's efforts to alert his supervisor of his tardiness, Complainant's supervisor approached Complainant as he left the medical clinic. The record testimony indicates that Complainant's supervisor confronted Complainant in front of other patients and employees in such an angry and confrontational manner that the physician and the Chief of Human Resources entered the hallway to assist in quieting the disturbance. According to the record, the physician was so shocked at the behavior of Complainant's supervisor that he was compelled to provide a letter to the Agency's Office of Human Resources detailing the appalling conduct by Complainant's supervisor during the confrontation. According to the physician who witnessed the incident, the behavior of Complainant's supervisor was "overbearing...undignified and belittling. The ensuing conflict disrupted my clinic operations and took place in front of the waiting clients..."
After this incident, Complainant's supervisor alleges that Complainant began to act in a disrespectful and threatening manner toward him. Complainant's supervisor claimed that Complainant randomly approached him using profane language and making rude gestures toward him. Complainant's supervisor testified that he found Complainant's conduct to be threatening and insubordinate. The AJ found that Complainant provided credible testimony at the hearing in this matter denying engaging in the alleged behavior. Complainant's supervisor alleged that on February 14, 2008, Complainant passed him and another Agency official in the hallway, pointed his finger at the two of them and without provocation uttered, "I got you mother fuckers." When they stopped in the hallway after Complainant's alleged comment, Complainant asked them if they, "had a fucking problem." Complainant denied making these statements as alleged. Complainant's supervisor testified that he felt threatened by Complainant's conduct and drafted a report of contact of the alleged incident on February 14, 2008. However, despite feeling threatened as he indicated, Complainant's supervisor failed to mention any of the unprofessional and hostile comments allegedly made by Complainant in the Notice of Termination issued to Complainant. Nor did the Notice indicate that Complainant was being terminated based on any of these alleged incidents. Additionally, the record does not indicate that Complainant's supervisor reported any of these alleged incidents to security despite his assertions that he was in fear of Complainant.
Following the termination of his employment with the Agency, Complainant periodically returned to the facility based on his status as a veteran, to seek medical treatment. Complainant's supervisor further alleges that on April 23, 2008, Complainant passed him in the hall and "flipped him off." Complainant's supervisor alleged also that Complainant said, "you're a punk ass mother fucker." Although Complainant's supervisor was aware that Complainant was no longer an employee, he testified that he was afraid of Complainant and wanted to report the interaction in a report of contact. However, despite his claims of being fearful, he never reported this alleged incident to security.
The AJ found that the Agency physician provided credible testimony regarding the incident that occurred in the medical clinic on December 14, 2007, and the behavior of Complainant's supervisor. Moreover, regarding the reports of contact drafted by Complainant's supervisor following Complainant's first termination in November 2007, the AJ found that Complainant's initiating of a claim of discrimination was the catalyst for the hostile approach toward Complainant and the beginning of him creating the reports of contact of Complainant's alleged disrespectful and threatening conduct. The AJ further found that Complainant provided credible testimony denying all of the alleged conduct documented by Complainant's supervisor and that Complainant's supervisor account of the alleged interactions was not convincing. The AJ found the accusations of Complainant's supervisor inconsistent in light of his lack of response. Specifically, the AJ notes that it is not plausible that Complainant's supervisor found these alleged interactions with Complainant so disturbing and threatening that he documented them in writing but failed to alert security of his concerns, issued Complainant any discipline or included them in Complainant's Notice of Termination. Finally, the AJ found unworthy of belief the fact that Complainant's supervisor continued to draft reports of his alleged interactions with Complainant after he was terminated yet still failed to report any of the incidents to security despite being concerned for his safety.
The AJ found the Agency's conduct and the rationale for the conduct referenced in this matter incompatible, and concluded that retaliatory animus was the true motivation for the Agency's actions as alleged herein. The instant appeal followed.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (November 9, 1999).
To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of establishing a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Man's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
In the instant case, substantial evidence gathered during the hearing supports the AJ's credibility findings and ultimate conclusion that Complainant proved that the reasons proffered by the responsible management officials for the disputed actions were pretext masking retaliatory animus for Complainant's prior EEO activity (EEO complaint over November 2007 rescinded notice of proposed removal).
In its appeal brief, the Agency maintains that the AJ's conclusion cannot be legally sustained in light of the finding in Johnson v. Department of Veterans Affairs, EEOC Appeal No. 0120091293 (June 24, 2009). In that case, the Agency argues that the issue of discrimination regarding Complainant's termination was previously decided in the Agency's favor. While we note that this previous decision was issued without the benefit of a hearing and credibility determinations on management witnesses, the Agency is correct that Complainant's termination is no longer at issue in the instant matter. However, by its own order, the Agency referred back, for counseling and processing as a new complaint, the issues of Complainant's non-selection for a permanent housekeeping position and his harassment claims. The AJ simply used the testimony concerning Complainant's termination as background evidence in this new case, and considered witness testimony in making credibility determinations about the non-selection and harassment claims. Accordingly, we are not persuaded that the AJ erred in rendering a finding of unlawful retaliation concerning the events at issue, which do not include Complainant's termination.
Non-Pecuniary Compensatory Damages
Compensatory damages may be awarded for the past pecuniary losses, future pecuniary losses, and non-pecuniary losses which are directly or proximately caused by an agency's discriminatory conduct. EEOC Enforcement Guidance: Compensatory and Punitive Damages Available under � 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002, at II.A. (July 14, 1992).
Objective evidence of compensatory damages can include statements from an employee concerning his emotional pain or suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, injury to character or reputation, injury to credit standing, loss of health, and any other non-pecuniary losses that are incurred as a result of the discriminatory conduct. Statements from others, including family members, friends, health care providers, or other counselors (including clergy) could address the outward manifestations or physical consequences of emotional distress, including sleeplessness, anxiety, stress, depression, marital strain, humiliation, emotional distress, loss of self-esteem, excessive fatigue, or a nervous breakdown. Lawrence v. U.S. Postal Serv., EEOC Appeal No. 01952288 (Apr. 18, 1996) (citing Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993)).
Evidence from a health care provider or other expert is not a prerequisite for recovery of compensatory damages for emotional harm. The employee's own testimony, along with the circumstances of a particular case, can suffice to sustain his burden in this regard. The more inherently degrading or humiliating an agency's action is, the more reasonable it is to infer that a person would suffer humiliation or distress from that action. The absence of supporting evidence, however, may affect the amount of damages appropriate in specific cases. See Banks v. U.S. Postal Serv., EEOC Appeal No. 07A20037 (Sept. 29, 2003) (citing Lawrence v. U.S. Postal Serv., EEOC Appeal No. 01952288 (Apr. 18, 1996)).
An award of non-pecuniary compensatory damages should reflect the extent to which an agency's discriminatory action directly or proximately caused the harm as well as the extent to which other factors also caused the harm. Johnson v. Dep't of the Interior, EEOC Appeal No. 01961812 (June 18, 1998). It is the employee's burden to provide objective evidence in support of his claim and proof Unking the damages to the alleged discrimination. Papas v. U.S. Postal Serv., EEOC Appeal No. 01930547 (Mar. 17, 1994); Mims v. Dep't of the Navy, EEOC Appeal No. 01933956 (Nov. 24, 1993). The Commission recognizes that not all harms are amenable to a precise quantification; the burden of limiting the remedy, however, rests with the employer. Chow v. Dep't of the Army, EEOC Appeal No. 01981308 (Feb. 12, 2001). Moreover, the amount of an award should not be "monstrously excessive" standing alone, should not be the product of passion of prejudice, and should be consistent with the amount awarded in similar cases. Cygnar v. Chicago, 865 F.2d 827, 848 (7th Cir. 1989); EEOC v. AIC Sec. Investigations, Ltd., 823 F. Supp. 571, 574 (N.D. Ill. 1993).
At the hearing, complainant testified that there was a significant change in the way his supervisor treated him after he filed the first EEO complaint in November 2007. Complainant testified that after he proved that the November 9, 2007 termination was issued erroneously, and he filed an EEO Counselor alleging race discrimination, that his supervisor began to "track him down" and berated and belittled him and that all of the factors contributed to an uncomfortable work environment.
Complainant further testified that he was very appreciative of his job as a housekeeping aid. Other than his absences, there is nothing in the record to indicate that he did not perform his job well. Complainant testified that he performed his job diligently in hopes of being hired into a permanent position. As a result of his inability to secure a permanent position, Complainant testified at the hearing that he lost his sole source of income and that he has been reliant on friends and family for financial support during his unemployment. Complainant further testified that he has had to seek public assistance to support himself and that the negative reference provided by his supervisor has destroyed his ability to apply for and be offered a position at any Agency facility. Complainant also testified that the uncomfortable environment remained when he visited the facility for treatment after his termination.
We note that it is Complainant's burden to provide objective evidence in support of his claim and proof linking the damages to the alleged discrimination. Papas v. United States Postal Service, EEOC Appeal No. 01930547 (March 17, 1994). Substantial evidence supports the AJ's finding that the harm Complainant suffered happened was the result of the alleged reprisal and harassment by the Agency. Because Ccomplainant was successful on his reprisal and harassment claims, he can recover for those claims. Therefore, we find that Complainant is entitled to an award of non-pecuniary damages.
Based on our review of the evidence in light of the Commission's cases regarding non-pecuniary compensatory damages awarded for emotional harm, we find that the AJ's award of $32,500 in non-pecuniary compensatory damages is consistent with Commission precedent. We do not find the amount of the award to be "monstrously excessive." See Jackson v. U.S. Postal Serv., EEOC Appeal No. 01972555 (April 15, 1999), citing Cvgnar v. City of Chicago, 865 F. 2d 827, 848 (7th Cir. 1989).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we discern no basis to disturb the AJ's finding of discrimination. For the foregoing reasons, the Agency's final order so far as it fails to implement the Administrative Judge's decision is REVERSED and REMANDED for the Agency to take corrective action in accordance with this decision and the ORDER below.
ORDER
To the extent it has not already done so, the Agency is ordered to take the following remedial actions within sixty (60) calendar days of the date this decision becomes final:
1. If Complainant is able to return to work, the Agency shall immediately reinstate Complainant into a permanent Housekeeping Aid or equivalent position, in a non-probationary status. The Agency shall accord Complainant the full benefits and privileges of employment consistent with applicable federal statutes, rules, and regulations covering civil service employees.
2. The Agency shall determine the appropriate amount of back pay from the earliest date (after August 7, 2007) he was not selected for a permanent position to the date that he is returned to work. Inclusive in this award, the Agency should calculate any other benefits due Complainant, pursuant to 29 C.F.R. � 1614.501. The award of back pay shall be subject to normal taxes and withholdings. The Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and all benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check lo the Complainant for the undisputed amount within thirty (30) calendar days of the date the Agency determines the amount it believes to be due. Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision."
3. The Agency is ordered to pay Complainant $32,500 in compensatory damages for the pain and suffering he endured as detailed herein.
4. In the event that the responsible management officials remain employed by the Agency, they each shall be provided a minimum of twenty (20) hours of EEO training with respect to Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and the Rehabilitation Act of 1973, as amended, to ensure that acts of discrimination do not recur. The Agency shall address these employees' responsibilities with respect to elimination discrimination in the workplace and all other supervisory and managerial responsibilities under equal employment opportunity law. In addition, disciplinary actions shall be considered for the responsible management officials. A report of the decision on disciplinary action, including rationale for the decision, shall be provided to the Compliance Officer as indicated below.
5. 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 Dorn Veterans Administration Medical facility 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)), he is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. Filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 16, 2013
__________________
Date
2
0720120023
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0720120023