0120081812
10-14-2015
Harold M.,1 Complainant, v. Deborah Lee James, Secretary, Department of the Air Force, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Harold M.,1
Complainant,
v.
Deborah Lee James,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120081812
Hearing No. 540-2007-00142X
Agency No. 4V1C07001
DECISION
Complainant timely filed an appeal from the Agency's February 4, 2008, final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission REVERSES the Agency's final order.
ISSUES PRESENTED
The issues presented are whether the EEOC Administrative Judge (AJ) properly issued a decision without a hearing, and whether Complainant was denied a reasonable accommodation for his disability when he was reassigned to a Security Guard position with duties outside his medical restrictions and denied his request to return to his Electronics Mechanic position.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Electronics Mechanic, WG-2604-11, at the Aerospace Maintenance and Regeneration Group (AMARG)2 in Tucson, Arizona. According to the Core Personnel Document for Complainant's position, the position required frequent lifting and carrying items weighing up to 40 pounds; sometimes lifting and carrying items more than 50 pounds with the assistance of weight-handling equipment or coworkers; and frequent standing, walking, bending, crouching, reaching, and stooping, as well as climbing and working in high places. Investigative File (IF), p. 117.
On July 23, 2003, Complainant sustained an on-the-job injury, which was diagnosed as left ankle sprain. According to documentation from Complainant's physician dated December 14, 2004, Complainant was restricted from twisting, standing more than 30 minutes per day, walking more than one hour per day, kneeling more than five minutes per day, and bending/stooping more than five minutes. IF, p. 123. These restrictions were reaffirmed by Complainant's physician in documentation dated January 25, 2005. IF, p. 121. On July 29, 2005, Complainant injured his right knee. From June 2004 until February 2006, the Agency assigned Complainant to light-duty detail assignments within his restrictions, including File Clerk and Production Controller. Specifically, the Agency assigned Complainant to a File Clerk position from June 2004 until October 2005. IF, p. 137. The Agency assigned Complainant to a Production Controller position in October 2005 until February 2006. Exhibit A-1, p. 7. On February 13, 2006, the Agency assigned to work in the Technical Order Library. Id.
On May 09, 2006, in a letter to Complainant, the Civilian Personnel Officer wrote that Complainant was found medically disqualified to perform the duties of his Electronics Mechanic position. The Agency therefore offered him the position of File Clerk, GS-305-04 in AMARG's Technical Order Library, with retained pay of $49,650. The letter was attached to a form on which Complainant could indicate whether he accepted or declined the offered position. Complainant did not indicate his choice, and on May 9, 2006, requested information regarding the offer, to which the Supervisory Employee Relations Specialist responded. On May 17, 2006, the Agency rescinded the offer and informed Complainant that he could continue working in the Technical Order Library, which involved sedentary work.
On September 5, 2006, the Agency assigned Complainant to a Security Specialist position at the Wilmot Gate. On September 14, 2006, Complainant asked his third-line supervisor (S3) to provide a reasonable accommodation by returning him to his Electronics Mechanic position with the ability to stretch his legs every so often because he worked in a cockpit, or by allowing him to work in the back shop.
On November 13, 2006, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability (ankle and knee problems) when on September 14, 2006, the Agency failed to accommodate him.
In an investigative affidavit statement, Complainant stated that he has permanent impairments to his left ankle and right knee which impact his ability to walk, stand, bend, and lift. Complainant stated that he spoke to S3 about returning to the Electronics Mechanic position, but S3 responded that Complainant would have difficulty working in the cockpit in a crouched position. Complainant further stated that he asked to work in the back shop, where he would not have to bend, kneel, squat, or stoop, and S3 agreed to this request if Complainant received a medical release to do so from his physician. Complainant further stated that he believed that he could be accommodated as an Electronics Mechanic as long as he could stretch his legs "every so often."
Complainant stated that he did not know the essential functions of his Electronics Mechanic position, but he would have problems working in a confined space and bending and squatting for prolonged periods of time. Complainant further stated that, on October 16, 2005, the Agency detailed him to a Production Controller position, which included sedentary duties that were within his medical restrictions. Complainant also stated that he asked to leave the Production Controller position because the supervisor harassed him, but he subsequently changed his mind about leaving the position. Complainant stated that the Agency hired someone for the position and ignored his request to remain in the position.
Complainant stated that he was detailed to work in the Technical Order Library until September 2006, and that he performed mostly sedentary work in this detail assignment. Complainant further stated that on September 5, 2006, the Agency assigned him to work as a Security Guard, and in this position, he worked "on his feet all day," which violated his medical restrictions. IF, p. 75. Complainant further stated that he began taking Vicodin to cope with the pain caused by working in a Security Guard position that violated his medical restrictions. Complainant stated that he still worked as a Security Guard at the time he gave his investigatory EEO affidavit statement (March 2007). Id.
Complainant stated that an agreement was reached for him to work in the back shop if he obtained a full release from his physician. Complainant stated that his physician would not give him a full medical release for fear that he would further damage his right knee. Complainant stated that he "self-nominated" himself for a Quality Assurance position in December 2006, but the Supervisory Employee Relations Specialist (SERS) told him that he was not medically qualified for the position. Complainant further stated that he also nominated himself for a Production Controller, GS-9, position on January 25, 2007, but he did not receive a response from the Agency.
Complainant's first-line supervisor (S1) stated that when he became Complainant's supervisor, Complainant worked as a gate guard, which "doesn't require a lot of physical requirements." S1 stated that although Complainant wanted to return to his Electronics Mechanic position in the shop, the position involved climbing into a cockpit, which would not have been acceptable for Complainant. S1 stated that Complainant had knee problems, and working on aircraft involved "a lot of climbing or squatting." S1 stated that Complainant would have worked on fighter aircraft, which feature confined and small spaces. S1 further stated that Complainant wanted to be accommodated in the shop, but his restrictions could not be accommodated.
S3 stated that as long as Complainant had medical documentation that he could not perform the position he was assigned and hired to perform, there was no other choice but to place him where there was a need, and would not violate his medical restrictions. S3 further stated that he spoke with the Complainant about working in the back shop and, at first, Complainant agreed to the assignment, but when everything was set up for Complainant to work in the back shop, he changed his mind about working there with no explanation.
S3 stated that Complainant explained to S2 that he was unable to perform the full range of his mechanic duties, and S3 asked him if he wanted to give it a try to see how much he could do without violating his medical restrictions. S3 stated that Complainant wanted S3 to modify his position description to indicate the things he could not do, but S3 told Complainant that he would not modify his position description.
The SERS stated that she met with Complainant and S3 in December 2006 and issued a letter informing Complainant that he needed to have a physician specify what his limitations were so that placement efforts could proceed. The SERS also stated that around December 2006, S3 had a conversation with Complainant in which he asked Complainant if he could perform the duties of his Electronics Mechanic position if accommodations were provided, and Complainant said he would contact his physician. However, the SERS stated that, the next day, Complainant said he did not want to provide the requested medical documentation and asked if the Agency would pay the cost to obtain that information from his physician. She stated that Complainant never showed any effort to assist them with providing an accommodation for him, but she advised him to apply for positions within his physical restrictions.
The record reveals that the physical requirements for the Quality Assurance Specialist position include sitting at a desk; regularly walking, standing, and bending for extended periods of time while observing manufacturing operations; and climbing to and from an aircraft while performing inspections. Agency Pre-Hearing Conference Report, Attachment 2. The Security Guard position involved "regular and recurring physical exertion such as long periods of standing, walking, bending, stooping, reaching, crawling, and similar activities." Additionally, the position involved walking while patrolling premises. The Production Controller position required mostly sedentary work with some standing and lifting up to five pounds.
The record further reveals that in a document dated February 7, 2007, Complainant's physician informed the Agency that Complainant met the physical restrictions for a Production Controller position but did not clear him to work as a Quality Assurance Specialist. The physician noted that Complainant was restricted from bending and carrying more than five pounds.
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 AJ. Complainant timely requested a hearing. On August 9, 2007, the Agency filed a Memorandum of Points and Authorities in Support of Motion for Decision without a Hearing. On October 29, 2007, the AJ issued a notice to both parties of her intent to issue a decision without a hearing. Complainant responded on November 16, 2007, and the Agency responded on November 23, 2007.
The AJ's Decision
On December 18, 2007, the AJ issued a decision without a hearing in which she found that the Agency did not deny Complainant a reasonable accommodation. Specifically, the AJ concluded that Complainant failed to show that he was an individual with a disability because he did not show that he was substantially limited in a major life activity. The AJ further found that Complainant was not denied reasonable accommodation because, in May 2007, the Agency offered him a modified position within his restrictions as a Production Controller, which Complainant accepted.3
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the AJ improperly issued a decision without a hearing in favor of the Agency. Complainant maintains that the AJ erred in finding that he was not an individual with a disability. Complainant further maintains that the AJ erred in finding that he could perform the essential functions of a Security Guard position at the hospital gate because the requirements of that position were outside his medical restrictions. The Agency requests that we affirm its final order.
STANDARD OF REVIEW
In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, � VI.B. (Aug. 5, 2015) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, � VI.A. (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
Decision without a Hearing
The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249.
The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003). As discussed in detail below, we find that the issuance of a decision without a hearing was appropriate. However, we find that the AJ erred when she found in favor of the Agency rather than Complainant.
Individual with a Disability
As an initial matter, we note that this complaint predates the passage of the ADA Amendments Act of 2008, which became effective January 1, 2009. We therefore will analyze this matter under the standards in effect at the time the claim arose.
Whether proceeding under a disparate treatment or reasonable accommodation analysis, a complainant who is claiming disability discrimination must first establish that he or she was an individual with a disability at the time of the alleged unlawful discriminatory conduct. Kershner v. Dep't of the Interior, EEOC Appeal No. 01995575 (Feb. 15, 2002). Under the Rehabilitation Act, an "individual with a disability" is defined as an individual who: (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such impairment; or (3) is regarded as having such an impairment. 29 C.F.R. � 1630.2(g). A physical impairment is "[a]ny physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine." 29 C.F.R. � 1630.2(h). In 29 C.F.R. � 1630.2(j), "substantially limited" is defined as the inability to perform a major life activity that the average person in the general population can perform; or significantly restricted as to the condition, manner, or duration under which the average person in the general population can perform that same major life activity. Major life activities include, but are not limited to, the function of caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 29 C.F.R. � 1630.2(i); see Appendix to 29 C.F.R. Part 1630 - Interpretive Guidance on Title I of the Americans with Disabilities Act (Appendix to 29 C.F.R. Part 1630).
In this case, we find that the AJ erred as a matter of law when she found that Complainant is not an individual with a disability. The record establishes that Complainant had long-term knee and ankle impairments that restricted him from standing more than 30 minutes per day and walking more than one hour per day. Additionally, Complainant's knee impairment restricted him from kneeling and bending more than five minutes per day and precluded him from twisting. No other evidence in the record contradicts this medical assessment. Thus, we find Complainant's physical impairments substantially limit his major life activities of standing and walking, and consequently, he is an individual with a disability. See Barnard v. U.S. Postal Serv., EEOC Appeal No. 07A10002 (Aug. 2, 2002) (complainant substantially limited in standing and walking where he had long term medical restrictions limiting his standing and walking to one hour per day, intermittently); Russell v. U.S. Postal Serv., EEOC Appeal No. 01981160 (Apr. 3, 2001) (complainant restricted to standing intermittently up to one-half hour per day found to be substantially limited in standing); Franklin v. U.S. Postal Serv., EEOC Appeal No. 07A00025 (Jan.10, 2001)(complainant substantially limited in standing and walking where knee impairment medically limited him to minimal walking and standing and precluded him entirely from bending, getting on his knees, and climbing up or down any stairs); Crockett v. U.S. Postal Serv., EEOC Appeal No. 01971288 (Oct. 30, 2000) (individual restricted to walking up to 15 minutes at a time to a maximum of two hours per day found substantially limited in walking; Henry v. U.S. Postal Serv., EEOC Appeal No. 01965235 (May 13, 1999) (two-hour standing restriction rendered complainant substantially limited in the major life activity of standing).
Qualified Individual
We next determine whether Complainant is a "qualified" individual with a disability within the meaning of the Rehabilitation Act. A "qualified" individual with a disability is one who satisfies the requirements for the employment position he holds or desires and can perform the essential functions of that position with or without reasonable accommodation. 29 C.F.R. � 1630.2(m). In this case, the Agency reassigned Complainant to File Clerk and Production Controller positions within his restrictions. The Agency does not dispute that, during the relevant time period, Complainant satisfactorily performed the duties of the File Clerk and Production Controller positions. Consequently, we find that Complainant is a qualified individual with a disability as a matter of law.
Denial of a Reasonable Accommodation
Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. � 1630.9.
Electronics Mechanic position
Complainant requested to be returned to his Electronics Mechanic position with the ability to stretch his legs as a reasonable accommodation. We note that Complainant acknowledged that his physician would not release him to return to his Electronics Mechanic position because the physician feared Complainant would further damage his right knee. Moreover, the position description for the Electronics Mechanic position indicates that this job involved core duties that were outside Complainant's medical restrictions, including frequent standing, walking, bending, crouching, reaching, and stooping, as well as climbing and working in high places. Thus, we find that no reasonable fact-finder could conclude that Complainant could perform the essential functions of the Electronics Mechanic position, with or without a reasonable accommodation.4
Security Guard position
In September 2006, the Agency reassigned Complainant from work duties within his restrictions at the Technical Order Library to an assignment as a Security Guard. Although Complainant was medically restricted from standing more than 30 minutes per day, Complainant contends that he worked "on his feet all day" in the Security Guard position. The position description for the Security Guard position reveals that the position requires "regular and recurring physical exertions, such as long periods standing, walking, bending, stooping, reaching, crawling, and similar activities." The Agency did not refute Complainant's specific contentions regarding his duties as a Security Guard, and the position description confirms Complainant's contentions. Thus, the Commission finds that the Agency failed to reasonably accommodate Complainant when it placed him into a Security Guard position in September 2006 that clearly violated his medical restrictions.
Production Controller position
On January 24, 2007, Complainant provided the Agency with updated medical documentation that indicated that Complainant was restricted from standing for a prolonged period of time; lifting more than five pounds; and bending, crawling, squatting, kneeling, and twisting.5 Based on these updated restrictions, on May 10, 2007, the Agency offered Complainant the position of Production Controller, which involved primarily sedentary work with some walking, standing, bending, and carrying of light items. IF, p. 134. On May 22, 2007, Complainant accepted the offer after the Agency made modifications suggested by Complainant. Nevertheless, Complainant objected to the requirement that Production Controllers acquire a Common Access Card, and sought a waiver of this requirement, but retired from the Agency on August 17, 2007.
Under these circumstances, we find that the Agency's obligations were satisfied when it offered him a position within his medical restrictions, which Complainant accepted with reservations on May 22, 2007.6 Consequently, we determine that the Agency's denied Complainant a reasonable accommodation only when it placed him into a Security Guard position from September 5, 2006, until May 22, 2007.
Compensatory Damages
In his formal complaint, Complainant requested compensatory damages. IF, p. 3. Failing to make a good faith effort to accommodate a complainant exposes an agency to liability for compensatory damages. See Reasonable Accommodation Guidance at 11, n 24, (Oct. 17, 2002). In this case, the Agency reassigned Complainant from a File Clerk assignment within his restrictions to a Security Guard position that obviously violated his medical restrictions. Therefore, Complainant is entitled to compensatory damages because we find that the Agency failed to make a good faith effort to accommodate Complainant for his disability from September 5, 2006 until May 22, 2007.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final order for the reasons set forth in this decision. The Commission REMANDS this matter to the Agency to take remedial actions in accordance with this decision and the ORDER below.
ORDER
The Agency is ordered to take the following remedial action:
1. Within 60 days of the date this decision becomes final, the Agency shall conduct a supplemental investigation to determine whether Complainant is entitled to compensatory damages incurred as a result of the Agency's discriminatory action from September 5, 2006 until May 22, 2007. The Agency shall allow Complainant to present evidence in support of her compensatory damages claim. See Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993). Complainant shall cooperate with the Agency in this regard. The Agency shall issue a final decision addressing the issues of compensatory damages no later man 60 days after the Agency's receipt of all information. The Agency shall submit a copy of the final decision to the Compliance Officer at the address set forth herein.
2. Within 120 days of the date this decision becomes final, the Agency shall provide training to all management officials at its AMARG facility their obligations in providing reasonable accommodation under the Rehabilitation Act. The Commission does not consider training to be disciplinary in nature.
3. The Agency shall consider taking disciplinary action against all responsible managements officials in this case. The Agency shall report its decision. 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.
4. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented.
POSTING ORDER (G0914)
The Agency is ordered to post at its AMARG facility in Tucson, Arizona, copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 Chap. 9 � VII.B (Aug. 5, 2015). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 14, 2015
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 We note that AMARG was previously the Aerospace Maintenance and Regeneration Center (AMARC). Agency's Appellate Brief, p. 1.
3 Complainant accepted the position but objected to the Agency's requirement that Production Controllers possess a Common Access Card (CAC) in order to access Agency equipment because it violated his religious beliefs. See EEOC Appeal No. 0120101589 (July 27, 2010). The Commission affirmed an AJ's finding that Complainant was not denied a reasonable accommodation for his religious beliefs with respect to this matter. Id.
4 Likewise, January 2007 documentation from Complainant's physician indicates that the duties of the Quality Assurance position also violated Complainant's medical restrictions.
5 Complainant maintains that he did not provide updated medical documentation until January 2007 because he was unable to obtain the documentation from his ankle surgeon, and therefore he asked his primary care physician to provide the documentation for the Agency.
6 Again, we note that the Commission determined that, contrary to Complainant's assertions, the Agency did not deny Complainant a religious accommodation when it offered him a Production Controller position at issue in EEOC Appeal No. 0120101589 (July 27, 2010).
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