01A30937_r
03-02-2004
Harry C. Wallace, Jr., et al., Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Harry C. Wallace, Jr., et al. v. Department of Justice
01A30937
March 2, 2004
.
Harry C. Wallace, Jr., et al.,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A30937
Agency No. A-01-1021
Hearing No. 150-A1-9167X
DECISION
On November 20, 2002, complainant, as class agent, filed an appeal from
the agency's Notice of Final Action dismissing his class complaint.
BACKGROUND
Complainant is an Assistant United States Attorney (AUSA) for the Southern
District of Florida. Complainant filed a formal EEO class complaint with
the agency dated July 25, 2001, claiming that Black AUSA's at the United
States Attorney's Office for the Southern District of Florida (USAO, SDFL)
were subjected to racial discrimination and reprisal. Complainant sought
certification of a class that includes all Black AUSA's who were denied
equal pay, equal benefits, and equal opportunity for promotion.
Complainant's complaint was forwarded to the EEOC Miami District Office
for a decision on certification. The AJ issued a decision on August 29,
2002, denying certification of the class. In her decision, the AJ found
that complainant failed to establish any of the prerequisites for class
certification (i.e., commonality, typicality, numerosity, and adequacy of
representation). Also, in her decision, the AJ rejected complainant's
reprisal claim as outside the purview of the Commission's regulations
on class complaints.
With regard to commonality and typicality, the AJ concluded that the
class agent has not shown that common questions of fact exist among the
purported class members or that the complainant's claim is typical of
the class. The AJ noted that the members of the class were allegedly
discriminated against in terms of promotions, assignments, transfers,
reassignments, unequal pay, bonuses, and disciplinary actions, including
terminations. The AJ determined that such an attack constitutes an across
the board attack on alleged employment practices committed by the agency.
The AJ found that the record does not contain evidence to establish that
a centralized decision-making authority effected all of these actions
or that the same policy was applied by the different supervisors and
management officials involved. The AJ noted that the class members
worked under different supervisors, in different divisions, at different
salary grades, in different offices, with different job responsibilities.
The AJ further noted that some of the class members hold supervisory
positions, while some do not, and therefore found they have differing
interests. Finally, the AJ noted that complainant does not identify a
particular racially discriminatory policy or practice that has the effect
of discriminating against the class as a whole. Rather, the AJ stated
that the complaint includes a wide range of allegedly discriminatory
practices, no one of which is alleged to affect all class members.
With regard to numerosity, the AJ noted that only twelve potential class
members were specifically named. The AJ noted that complainant proffered
that the class would encompass approximately forty-five Black AUSAs who
were affected by the agency actions in question. The AJ noted, however,
that the agency contends that its record reveals only thirty-three
potential members at best, including current and previous employees.
The AJ determined that complainant failed to establish that the putative
class is so large that joinder of the individual claims is impractical.
With regard to adequacy of representation, the AJ stated that the class
agent failed to show that he has the legal expertise or resources to
adequately protect the class.
On September 20, 2002, the AJ issued a letter clarifying her August
29, 2002 decision. The AJ noted that her previous decision failed to
specifically address the status of complainant's individual complaint of
discrimination. In her clarification, the AJ stated that complainant's
individual complaint of discrimination is to be deemed filed on the date
of this letter of clarification. The AJ provided that the agency shall
acknowledge receipt of the individual complaint within thirty days of
receipt of this letter.
On October 9, 2002, the agency issued a Final Order fully implementing
the AJ's decision denying certification. The agency stated that it will
process the complaint as an individual complaint.
On November 20, 2002, the class agent filed the present appeal. In his
appeal brief, complainant argues that the AJ denied him a reasonable
opportunity to conduct full and complete discovery in order to gather
information in support of his petition for class certification.<1>
Complainant notes that under 29 C.F.R. � 1614.204(f), �[b]oth parties
are entitled to reasonable development of evidence on matters relevant
to the issues raised in the complaint.� Complainant claims that the
AJ's September 27, 2001 Acknowledgment Order expanded upon section
1614.204(f) by stating that �the parties may agree among themselves to
set and/or extend the time limits within which to complete discovery.
The Administrative Judge is ultimately responsible for setting a deadline
to complete discovery whenever such a dispute arises.� Complainant claims
he detrimentally relied upon the AJ's September 27, 2001 Order which he
argues led him to believe that the discovery deadline could be extended
by the mutual agreement of the parties. He states that he reasonably
believed the parties only needed to consult the AJ when a dispute arises.
Additionally, complainant claims that the certification requirements of
numerosity, commonality, typicality, and adequacy of representation have
been satisfied. Specifically, complainant argues that the AJ incorrectly
described the inner-workings of the agency. He states that AUSAs are not
compensated on the General Services' scale. Additionally, he states that
with the U.S. Attorney's permission, AUSAs may change offices, divisions,
and sections within the agency. Complainant claims that every decision
regarding attorney promotions, transfers, disciplinary actions, the award
of bonuses or cash, the nominations for awards, division and section
assignments and termination is made by the U.S. Attorney. Complainant
claims that the U.S. Attorney either ordered or approved all personnel
decisions, or he recommended the same to officials with the Executive
Office for United States Attorneys (EOUSA). Complainant states that
approval by EOUSA of the U.S. Attorney's recommendations was perfunctory.
Thus, complainant claims that all personnel decisions within the agency
made by the U.S. attorney employed a subjective decision making process.
Complainant notes that objective criteria was established by the former
U.S. Attorney in March 9, 1999; however, he claims that the agency
has failed to demonstrate that this objective criteria is being used.
Complainant claims that when positions are advertised within the agency,
they include a copy of the objective criteria along with a disclaimer
that the U.S. Attorney reserves the discretion to promote whomever he
wishes regardless of the objective criteria.
With regard to numerosity, complainant claims that the class consists
of approximately forty-five AUSAs who were denied an equal opportunity
for promotions, benefits and pay, and who were disciplined at a higher
rate and more severely than were white AUSAs. Complainant claims that
he submitted a list that contained the names of forty-five current and
former Black AUSAs. Complainant submits a copy of this list on appeal.
Complainant claims that joinder of the forty-five attorneys is impractical
since some of the attorneys have been dispersed across the country and
some have retired.
With regard to commonality, complainant claims that the agency's
discriminatory policies, practices and procedures have systematically
deprived Black AUSAs of equal promotional opportunities and equal benefits
and pay. Complainant states that it has also subjected them to disparate
disciplinary treatment and has resulted in suspect case assignments.
Complainant notes that he has described six different ways in which the
agency has discriminated against the class.
He states that the injuries are attributed to the systematic
discriminatory policies and practices of the agency as well as the failure
of the agency to establish uniform procedures for the administration of
promotions and compensation.
Further, complainant argues that his claims are typical of the claims of
the class. He notes that his brief on class certification gave examples
of denial of promotions, delays in promotions, involuntary reassignments,
denial of reassignments, disciplinary action and denial of the opportunity
to be lead counsel on a high-profile case. He notes that he personally
was denied promotions, involuntarily reassigned, denied a reassignment,
subjected to discipline and denied the opportunity to be lead counsel
on a high-profile case. He states that his claims are nearly identical
to the claims of the class.
Finally, complainant claims that he satisfies the adequacy of
representation requirement. He notes that he is an AUSA who is admitted
to the bars of Florida and the District of Columbia. He states he
has been an attorney for sixteen years and has served as a Captain
in the U.S. Army Judge Advocate General's Corp for three years, with
experience in Title VII litigation. Further, complainant notes that
the putative class consists of AUSAs who practice at the highest level
of federal litigation. He states that if the need arises, there are a
number of class members who also are capable of assisting in the legal
responsibilities of representation.
In opposition to complainant's appeal, the agency argued that complainant
had ample discovery opportunities. The agency noted that the initial
sixty-day discovery period set to end on November 26, 2001, was extended
by thirty days. The agency argues that this ninety-day period was
ample time to conduct discovery. Further, the agency stated that it
cooperated with complainant during discovery while complainant engaged in
delay tactics. The agency states that on December 7, 2001, the agency
representative notified complainant that no discovery responses would
be provided until a protective order was signed. The agency noted
that up until January 9, 2002, despite the fact that the discovery
period had ended, the agency remained willing to provide discovery
responses to complainant if complainant would agree to a protective order.
The agency notes, however, that complainant would not agree to enter into
a protective order. The agency states that complainant also delayed
in providing discovery responses to the agency. The agency also notes
that complainant did not seek to compel or otherwise force the agency to
respond to discovery. Further, the agency claims that he did not claim
in his brief filed in support of class certification that the lack of
discovery prejudiced his case.
With regard to complainant's claim that based on the AJ's September 27,
2001 Acknowledgment Order he believed the parties could agree to extend
discovery without the consent of the AJ, the agency argues that this
argument is unreasonable in light of the fact that the Acknowledgment
Order required complainant to file his brief in support of class
certification no later than December 11, 2001. Thus, the agency states
that if complainant wanted discovery in order to support his position
in his brief, he should have known that discovery had to be completed
prior to December 11, 2001. Further, the agency claims that complainant
should have brought any confusion regarding the Acknowledgment Order
to the attention of the AJ. Additionally, the agency argues that the
AJ's decision not to extend the discovery period for a second time was
well within her discretion. Finally, the agency argues that complainant
failed to show that the lack of discovery was harmful error.
Furthermore, the agency argues that the AJ properly denied certification
of the proposed class. With regard to complainant's argument that
the AJ inaccurately described the office working structure, the agency
avers that the AJ's statements regarding the structure of the office are
supported by the record. The agency states that the office is divided
into separate offices, divisions and subdivisions. The agency states
that a class of all Black AUSAs, would encompass attorneys from different
offices, divisions and subdivisions, ranging from AUSAs assigned to the
Major Crimes Section of the Miami office to AUSAs working in the Civil
Division in Fort Lauderdale. The agency notes that each office has
a different managing officer, showing a decentralized decision making
structure. Also, the agency notes that each division and section is
headed by supervisors who have responsibility for numerous decisions
involving AUSAs.
With regard to numerosity, the agency claims that complainant fails to
show that the class is sufficiently numerous to justify using the class
action mechanism. The agency notes that on appeal complainant provided a
list of forty-five alleged class members. The agency contends that this
list is new evidence submitted on appeal and should not be considered.
However, the agency also points out that numerous individuals listed
by complainant are not AUSAs in the USAO, SDFL and could not be part of
complainant's purported class. The agency states that the class complaint
covers a defined period - from Person A's tenure as U.S. Attorney from
August 27, 1999 to May 2000, and continuing to the tenure of Person B,
current U.S. Attorney. The agency notes that on the list provided on
appeal, complainant identifies individuals who retired, transferred or
resigned from the AUSA's SDFL prior to August 1999. The agency notes
that it identified Black AUSAs employed by the USAO from 1998 to 2001.
The agency stated that the maximum number of potential class members is
thirty-three; however, the agency noted that not all possible members
can stay in the class without destroying commonality. Specifically,
the agency subtracted the nine Black AUSAs who did not have the
requisite years of experience to qualify for a supervisory position,
the seven Black AUSAs who currently serve in supervisory positions,
and the three Black AUSAs who previously served as supervisors. Thus,
the agency concluded that class membership drops to thirteen and is
insufficient to satisfy numerosity. Further, the agency argues despite
the complainant's contention that the class members are geographically
dispersed, all currently employed AUSAs are geographically clustered,
not dispersed. Also, the agency notes that six former employees who
left the USAO for other positions all reside in Florida, with one person
living in the Middle District of Florida, the farthest outside of Miami.
The agency claims that complainant fails to satisfy commonality.
The agency notes that his allegations do not show a policy, practice
or procedure of discrimination, but rather show that individual issues
predominate. The agency also notes that several of the named class
members were actually promoted to positions they applied for, a fact
which the agency claims provides evidence that there were no racially
discriminatory practices in place.
Additionally, the agency claims that complainant's claims are not
typical of the class. The agency notes that at best, complainant's
claims are typical of six other class members on the promotion denial,
are not typical of the delay of promotion claims, are typical of two
class members on reassignment, are typical of one class member on denial
of reassignment requests and disciplinary actions, and are atypical
on the denial of desired case assignments. Thus, the agency states
at best complainant has shown that his claims are typical of only ten
class members out of his purported forty-five members. Further, the
agency notes that complainant has conflicts with other class members.
For example, the agency states complainant has a conflict with one
class member who was chosen over complainant to serve as Deputy Chief,
Major Crimes. Also, the agency notes that complainant was involved
in effectuating the Supervisory Criteria which sets him apart from the
class and causes his interests to diverge. The agency states that this
creates a conflict between him and the members of the putative class
who do not meet the threshold criteria.
Finally, the agency argues that complainant fails to satisfy the adequacy
of representation prerequisite for certification.
The record reveals that the AJ issued an Acknowledgment Order & Order
to Show Cause on September 27, 2001. Under the Discovery section,
the Order stated that �[t]he parties may agree among themselves to
set and/or extend the time limits within which to complete discovery.
The Administrative Judge is ultimately responsible for setting a deadline
to complete discovery whenever such a dispute arises.� This Order set
the deadline for discovery on November 26, 2001.
The record reveals that complainant sent his interrogatories and
requests for production to the agency on November 2, 2001. In his
request, complainant requests, inter alia, the following information:
identification of all current and former AUSAs who have been employed
by the U.S. Attorney's Office for the Southern District of Florida
since January 1, 1983, including information on race, salary, and any
supervisory positions held; identification of all supervisory positions
for AUSAs that have been opened since January 1, 1983; identification
of all AUSAs who applied for these supervisory positions, including the
applicant's race; all documentation that supported the selection of the
AUSAs for the supervisory positions identified; and identification of
all AUSAs who were nominated, but not selected, to receive awards since
January 1, 1983, and all relevant documentation submitted in support of
these awards. The record reveals that on November 8, 2001, complainant
served the agency with Notice of Taking Depositions of persons involved
in the administration of the agency's policies and procedures and the
discriminatory employment practices alleged in the complaint, including:
the formed United States Attorney; the present United States Attorney;
First Assistant United States Attorney; and Administrative Officer A.
On November 9, 2001, the agency filed a Motion for Extension of Time
to respond to complainant's interrogatories and request for production
of documents. Thereafter, on November 26, 2001, the agency served its
First Discovery Requests and Notice of Deposition to Complainant.
The record contains an electronic mail message from the agency attorney
advisor dated November 28, 2001, informing complainant that the AJ
extended the deadlines in her September 27, 2001 Acknowledgment by
thirty days. The electronic mail message stated that discovery must
be completed within thirty days of November 26, 2001. Additionally,
the attorney advisor noted that the AJ suggested �that we file a joint
motion if we are going to run into problems with these deadlines,
and that we might want to mention the problem with the mail if that's
slowed down our ability to communicate. You said that you would check
your schedule and let me know by the end of this week whether you would
need more time.� The record contains no evidence that the AJ issued an
official Order granting the agency's motion.
On December 14, 2001, complainant and the agency filed a joint motion
for an enlargement of time for discovery. The AJ denied the joint motion
on January 2, 2002.
On January 7, 2002, complainant filed a Motion for Clarification of the
Briefing Schedule and Request for a 30-day Extension. In this motion,
complainant noted that to date, the agency has not responded to his
discovery requests. He states that on January 4, 2002, agency counsel
informed him that the agency anticipates that it will be able to provide
most of the required information by January 11, 2002. Complainant
states �[t]he information requested pursuant to Complainant's discovery
requests is necessary to any meaningful discussion of the issue of class
certification, and Complainant will be unduly prejudiced in formalizing
and maintaining his position if he is denied the requested information
prior to submitting his brief.� Complainant requests an additional
thirty days from the AJ's January 2, 2002 Order to submit his brief.
On January 7, 2002, the agency first filed a Motion to Compel Discovery
to compel complainant to respond to its First Set of Discovery Requests.
On January 8, 2002, the agency filed its Response to Complainant's Motion
for Clarification of Briefing Schedule and Request for an Additional 30
Days, in which it did not object to complainant's motion or request for
an extension of time to file his brief.
On January 25, 2002, the AJ issued a Response to Party Motions declining
both parties' motions. In her Response, the AJ reiterated the deadlines
set in her January 2, 2002 Order, which provided that discovery was
continued until December 26, 2001, and complainant's brief was due
on January 11, 2002, with an agency response due on January 26, 2001.
The AJ noted that instead of taking advantage of the 30 day extension
granted, �the parties opted to file another motion for an extension
of time and to agree between themselves to extend the time frames for
discovery.� The AJ stated it is unclear why the parties worked under the
assumption that their second request for an extension would be granted.
The AJ noted that there was no good cause shown to grant a second
extension and she stated that the Acknowledgment Order �clearly states
that the Administrative Judge is ultimately responsible for setting a
deadline to complete discovery.� The AJ noted that �by deciding between
themselves to extend an already established discovery deadline, the
parties essentially removed the Administrative Judge from the discovery
process.� The AJ declined to address the agency's January 7, 2002 Motion
to Compel since it was not filed by December 26, 2001, the established
discovery deadline. With regard to complainant's claim that he will
be unduly prejudiced, the AJ found this argument to be without merit.
However, the AJ provided complainant with an additional opportunity to
submit a brief in this matter by close of business on January 25, 2002.
ANALYSIS AND FINDINGS
The purpose of class action complaints is to economically address claims
�common to [a] class as a whole . . . turn[ing] on questions of law
applicable in the same manner to each member of the class.� General
Telephone Co. of the Southwest v. Falcon, 457 U.S. 147, 155 (1982)
(citations omitted). Under EEOC Regulations, a class complaint must
allege that: (i) the class is so numerous that a consolidated complaint
concerning the individual claims of its members is impractical; (ii) there
are questions of fact common to the class; (iii) the class agent's claims
are typical of the claims of the class; and (iv) the agent of the class,
or if represented, the representative, will fairly and adequately protect
the interests of the class. 29 C.F.R. � 1614.204(a)(2). The agency
may reject a class complaint if any of the prerequisites are not met.
See Garcia v. Department of Justice, EEOC Request No. 05960870 (October
10, 1998).
Our review of the record leads us to conclude that the AJ improperly
denied the December 14, 2001 joint request for an extension of the
discovery period in the present case. We find that the AJ's September 27,
2001 Acknowledgment Order, providing in pertinent part that �[t]he parties
may agree among themselves to set and/or extend the time limits within
which to complete discovery. The Administrative Judge is ultimately
responsible for setting a deadline to complete discovery whenever such
a dispute arises[,]� contains contradictory advice to the parties as to
the procedure for setting discovery deadlines.
Further, we find cause for concern based on the fact that the agency's
initial November 9, 2001 Motion for Extension of Time was never officially
granted by the AJ. Although the record contains a November 28, 2001
electronic mail message from the agency's attorney advisor, informing
complainant that the AJ extended the deadlines in her September 27,
2001 Acknowledgment Order by thirty days, there is no official Order by
the AJ granting the agency's motion. Even if we consider the agency's
electronic mail message to constitute an Order granting the agency's
motion, we note that it was issued two days beyond the preset November
26, 2001 deadline for discovery. Thus, we find the parties could have
reasonably believed that the AJ again could have granted their December
14, 2001 joint motion for an extension of time beyond the December 26,
2001 deadline and that such a grant would occur after December 26, 2001.
Although the regulations and Commission guidance do not specify an exact
time frame for an AJ to respond to parties' motions, we find that where
a response is not received by the parties upon the expiration of the
applicable deadline it is more difficult for the parties to take further
action in anticipation of the AJ's response.
Finally, we note that in the same November 28, 2001 electronic message
the agency's attorney advisor informed complainant that the AJ suggested
�that we file a joint motion if we are going to run into problems with
these deadlines, and that we might want to mention the problem with the
mail if that's slowed down our ability to communicate.� Based on this
language, in conjunction with the AJ's Acknowledgment Order, we find
it reasonable that complainant believed the parties could set their
own discovery deadlines. Thus, we find that the AJ improperly denied
the parties December 14, 2001 joint motion for an enlargement of time
for discovery.
In the present case, complainant contends that Black AUSA's were
discriminated against and subject to reprisal when they were denied equal
pay, equal benefits, and equal opportunity for promotion. Specifically,
complainant alleges that members of the class were discriminated against
in terms of promotions, assignments, transfers, reassignments, unequal
pay bonuses, and disciplinary actions. We note that complainant alleges
that subjective decision-making from the U.S. Attorney is responsible for
the alleged discrimination; however, the record contains no evidence that
a centralized decision-making authority effected the claimed actions,
or that the same policies were applied by numerous management officials.
The record indicates that during discovery, complainant requested
information concerning potential class members, including data relevant
to all supervisory positions for AUSAs filled during the relevant time as
well as information concerning cash awards and incentives that would have
yielded information related to the exact claims and policies at issue,
as well as the source of the decision-making authority. Due to the
absence in the record of fully developed evidence regarding the claims
asserted by potential class members and the decision- making authority
in each case, the Commission remands the present matter in accordance
with the Order below.
Additionally, we note that the AJ's August 29, 2002 decision improperly
rejected complainant's reprisal claim as outside the purview of the
Commission's regulations on class complaints. The Commission has held
that reprisal is an appropriate basis for a class complaint when there
is a showing that specific reprisal actions were taken against a group
of people challenging agency policies, or where reprisal was routinely
visited on class members. Ponder, et al. v. Social Security Admin.,
EEOC Appeal No. 01A04411 (May 15, 2003) (citing Levitoff v. Department
of Agriculture, EEOC Appeal No. 01913685 (March 17, 1992), request for
reconsideration denied, EEOC Request No. 05920601 (September 10, 1992)).
CONCLUSION
Accordingly, the agency's decision concerning the class complaint and the
individual complaint which stemmed from the class complaint is VACATED,
and the matter is REMANDED for further processing pursuant to this
decision and the Order herein.
ORDER
The agency is ORDERED to take the following action:
Within 30 calendar days from the date this decision becomes final, the
agency shall forward the entire record to the Hearings Unit of the Miami
District Office. In its transmittal letter, the agency shall request
that an Administrative Judge be assigned for the purpose of undertaking
additional discovery to obtain information currently absent from the
record, and shall indicate that it would appear that additional discovery
may include information more fully describing the relevant vacancies
for supervisory positions for Assistant United States Attorneys and
the procedures for filling those positions during the relevant period;
the implementation of cash awards and other incentive awards for AUSAs
during the relevant period; and the disciplinary actions taken against
AUSAs during the relevant period, including who is responsible for
implementing discipline. The transmittal letter will also request that
the AJ render a decision on the issue of class certification, pursuant
to 29 C.F.R. � 1614.204, upon completion of this discovery phase.
While the above action is pending, the agency is to cease processing of
complainant's individual complaint, and hold its processing in abeyance.
Should the AJ's decision reject the class action complaint, then the
agency must notify complainant that his individual complaint will be
deemed filed as of the date of the final action, and that it will be
processed under the appropriate EEOC Regulations. See 29 C.F.R. �
1614.204(d)(7).
The agency shall provide a copy of the transmittal letter to the
Compliance Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
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 (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 2, 2004
__________________
Date
1The record reveals that complainant submitted
an additional reply brief in support of his appeal on March 28, 2003.
The Commission declines to consider this additional brief since it was
submitted beyond thirty days of the filing of the notice of appeal.
29 C.F.R. � 1614.403(d).