0120114008
08-22-2013
Jo D. Spence, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Jo D. Spence,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120114008
Hearing No. 570-2010-00759X
Agency No. 2004X0022009104277
DECISION
On August 25, 2011, Complainant filed an appeal from the Agency's June 14, 2011, final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Assistant Counsel1 at the Agency's Office of General Counsel (OGC) in Washington DC. While working for OGC, Complainant's work duties were assigned by the Office of Acquisition, Logistics, and Construction (OALC) located on the seventh floor of the same building.
On September 25, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), age (50), and reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when:
1. 2On or about April 29, 2009, Complainant's job duties with OALC were removed and reassigned to other attorneys and Complainant received virtually no work assignments through August 2009; Complainant was barred from the seventh floor of the Agency's Central Office, and was not permitted to have any personal contact with employees of the OALC;
2. On or about May 3, 2009, the Agency's Deputy General Counsel and Complainant's third level supervisor (RMO3: White, male, age 68) threatened Complainant with disciplinary action;
3. During the period of June 2009 through September 2009, management failed to respond to emails requesting explanations as to why Complainant was still barred from the seventh floor and her job duties had not been restored;
4. On or about July 15, 2009, Complainant received a proposed suspension;
5. On or about July 31,2009 and August 5,2009, Complainant's supervisors attempted to force Complainant to meet with them to discuss work assignments;
6. On or about August 15, 2009, Complainant received work assignments for the Employment Education Services (EES) and the Office of Acquisition, Logistics, and Construction (OALC) in Frederick, Maryland, although Complainant had been hired to support OALC at the Agency's Central Office in Washington DC;
7. On August 28, 2009, Complainant's second level supervisor (RMO2: African American, female, age 58) attempted to force Complainant to meet with her to discuss Complainant traveling to St. Louis for work;
8. On or about September 11, 2009, Complainant was issued a Letter of Reprimand;
9. On or about September 25, 2009, Complainant's request to Telework was denied; and
10. On or about November of 2009, Complainant received a performance rating of "Fully Successful" for the period encompassing October 1, 2008 through September 30, 2009, which denied her awards and bonuses associated with a higher rating.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's March 1, 2011, motion for a decision without a hearing and issued a decision without a hearing on June 8, 2011. The AJ found that the Agency articulated legitimate nondiscriminatory reasons for its actions. With regard to claims 1 and 6, the Agency's reason was that Complainant had been barred from the seventh floor where the OALC Central Office was located, and was barred from working with OALC staff or conducting her normal OALC-related work duties, pursuant to an April 2009 allegation by an OALC employee that she had physically assaulted him. The AJ further found that Complainant failed to establish that the Agency's articulated reasons were pretextual.
With regard to claim 2, the AJ found that RMO3 denied making any threat and that Complainant failed to present any evidence to rebut his claim or to establish pretext. With regard to claim 3, the AJ found that RMO2 said that she did not respond to Complainant's emails because Complainant had already been provided with the reasons for the Agency's actions and that she "did not believe it necessary to respond to each and every one of Complainant's repeated requests or to have to continually explain to Complainant the reasons stated for her restricted access." The AJ found that Complainant failed to demonstrate pretext.
With regard to claims 4 and 8, the AJ found that Complainant was issued the letter of reprimand and the proposed suspension for the April 2009 alleged assault, her use of inappropriate language during that incident, and her subsequent violation of a direct order not to visit the seventh floor. With regard to claim 5, the AJ found that Complainant's first level supervisor (RMO1: White, male, age 56) and RMO2 denied that Complainant was forced to meet with them but rather they arranged the meeting to determine how to find more work assignments for Complainant and that once RMO1 arrived at the meeting Complainant refused to stay. The AJ further found that Complainant failed to establish pretext with respect to claims 4, 5, and 8.
With regard to claim 7, the AJ found that the Agency denied that any meeting had ever occurred and Complainant was not required to travel to St. Louis but that, in any event, Complainant's position description does not preclude having to travel as part of the job. With regard to claim 9, the AJ found that the Agency said that telework was denied because Complainant did not meet the requirements of being "reliable, responsible, and able to work independently." With regard to claim 10, the AJ found that neither party addressed this issue and that it "appears to be waived by Complainant" but that, in any event, Complainant presented no evidence that the Agency's assessment of "fully successful" was based on discrimination.
The AJ further analyzed Complainant's claims under a harassment theory, finding that Complainant failed to show that any alleged verbal or physical conduct was based on Complainant's protected bases and further failed to show that any alleged action was sufficiently severe or pervasive to constitute harassment. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
ANALYSIS AND FINDINGS
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, at Chapter 9, � VI.B. (November 9, 1999) (providing that both the Administrative Judge's determination to issue a decision without a hearing, and the decision itself, are subject to de novo review). 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"). We must first determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. 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. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
Complainant barred from seventh floor and work reassignment.
The allocation of burdens and order of presentation of proof in a case alleging disparate treatment discrimination is a three step procedure: Complainant has the initial burden of proving, by a preponderance of the evidence, a prima facie case of discrimination; the burden then shifts to the employer to articulate some legitimate, nondiscriminatory reason for its challenged action; and Complainant must then prove, by a preponderance of the evidence, that the legitimate reason offered by the employer was not its true reason, but was a pretext for discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The prima facie inquiry may be dispensed with in this case, however, since the agency has articulated legitimate and nondiscriminatory reasons for its actions. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713 17 (1983).
Specifically, with regard to claims 1 and 6, while the record does not contain any official notice or documentation regarding Complainant being barred from the seventh floor, RMOs 1 & 2 averred that the action was taken pursuant to a request by OALC management following an incident on April 28, 2009 wherein Complainant was accused of assaulting an OALC employee who worked on the seventh floor by throwing a binder at him and using profanity. See Report of Investigation (ROI) Affidavit B2, pp. 13-16 and B3, pp. 14-15. RMO1 further averred that it was Complainant who asked "that her work be reassigned and that she not be the legal advisor for [OALC]." Affidavit B3, p. 15. RMO2 denied that Complainant's workload diminished to the extent that Complainant received virtually no work, stating instead that Complainant "did not receive the assignments . . . that she typically received" because management felt it better not to assign her work coming out of that office. See id., p. 12. RMO2 further averred that "the workload was not to the level that she had been accustomed to, but she was assigned work, albeit not work that she had . . . routinely been assigned prior to that time. . . . [B]y August . . . there was a full workload." Id., p. 13. RMO2 further averred that following an internal investigation that found no assault occurred, she asked OALC management whether they would reconsider lifting the ban, but that they asked to continue the ban "because of the tension as well as prior to that time, prior to April, there had been a couple of instances that they were not pleased with [Complainant's], I guess, attitude or interactions with them" Id., p. 15.
The burden thus returns to the complainant to demonstrate, by a preponderance of the evidence, that the agency's reason was pretextual, that is, it was not the true reason or the action was influenced by legally impermissible criteria. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981); St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
Complainant averred that she was never provided the reasons why OALC management asked her supervisors to bar Complainant from the seventh floor or why RMOs 1 & 2 reassigned her duties from OALC on the seventh floor to another OALC office located in Frederick, Maryland. See ROI, Affidavit B1, p. 18. Complainant further averred that RMOs 1 & 2 soon learned that no assault occurred yet despite this the seventh-floor ban was still maintained. See id., p. 19. Complainant argues on appeal that the fact that the ban continued even after management learned that no assault occurred is sufficient to establish pretext. See Complainant's Appeal Brief. Complainant further denied that she had asked to be reassigned to another OALC office, but rather explained "I asked to be transferred from a supply-funded position - which means that [OALC] pays my salary - to a position outside of [OALC]" See id., pp. 21-22. Complainant argues on appeal that inconsistencies in the record regarding whether Complainant was to be barred from the entire seventh floor or just the OALC offices on the seventh floor show that the Agency's articulated reason for the ban was pretextual.
The AJ found that Complainant failed to rebut "the Agency's articulations [sic] that the actions the Agency took upon learning of the alleged assault were because of the assault allegation and the nature of Complainant's OALC-funded position" and also failed to show that "the Agency's challenged actions were based upon Complainant's membership in any relevant protected class." Following a review of the record, we agree. We further find that Complainant has not raised a material issue of fact to justify a hearing. We note with regard to whether or not Complainant was barred from the entire seventh floor or simply the OALC offices on that floor, such a discrepancy is not material to the issue of whether or not Complainant incurred discrimination.
With regard to the fact that the ban was maintained even after management became aware that no assault occurred, we find that this is insufficient to demonstrate that the Agency's articulated reason was pretextual or that the Agency's action was based on discrimination.
May 2009 Threat of Disciplinary Action
With regard to claim 2, we find that RMO3 articulated a legitimate nondiscriminatory reason for his action when he denied making any threat of disciplinary action towards Complainant, see ROI, Affidavit B6, p. 10, and averred instead that "I told her in the event there was any disciplinary action taken against her, that it was possible that I could be an appellate official, somebody to which she would appeal; and for that reason, I couldn't guarantee her confidentiality with regard to anything she had to say." Id., p. 13. Complainant's affidavit indicates she agrees with RMO3 in this regard, see ROI, Affidavit B1, pp. 91-92, but Complainant nevertheless felt that RMO3's words amounted to some kind of threat. Complainant averred that:
[H]e said if there was a hearing or something like that, that he would guarantee me a fair hearing, or something to that effect. That was the end of our conversation. So I left his office kind of confused because I didn't understand why he would be telling me my supervisors would be determining a Disciplinary Action [sic] and he would be the deciding official and when he was aware that [other Agency officials] had found there was no assault. So I was a little bit distressed by that meeting; and I felt that [RMO3] was helping his buddy [a management official in OALC], by pretty much shutting me down and telling me, 'I can't hear what you have to say or I am not in a position to hear anything that you say but I will be deciding a [sic] discipline.' It wasn't: 'If your supervisors determine that there will be a Disciplinary Action.' It was: 'When your - - It was: Your supervisors will determine a Disciplinary Action. I will be the deciding official', very matter of fact.
Id.
Complainant, however, does not explain how RMO3 merely explaining that he would be a deciding official regarding any possible disciplinary action amounts to articulating a threat of disciplinary action against her. Complainant has not shown the presence of a material issue, nor has she shown that RMO3 engaged in employment discrimination.
Unanswered Emails, Assignment Meeting, and Trip to S. Louis.
With regard to claims 3, 5, and 7, we find that, even assuming arguendo that Complainant was harmed by the alleged actions, the Agency articulated legitimate nondiscriminatory reasons for its actions and Complainant has not shown such articulated reasons are pretextual. Nor has she shown the presence of a material issue. With regard to Complainant's allegation that her emails asking management to explain why she had been barred from the seventh floor went unanswered, RMO2 admitted that "I did not respond to each and every email," ROI, Affidavit B2, p.55, but averred that "I can unequivocally state that I gave her a basis for being barred from the seventh floor." Id., p. 54. RMO2 further said that she felt she had provided sufficient responses to Complainant's requests because she felt that her responses "were clear. [Complainant] is an attorney. I was clear and unequivocal as to why [Complainant had been barred from the seventh floor]." Id., p. 55. We note that the record contains an email from RMO1 to Complainant dated April 29, 2009 which states:
As I advised you today, and as [RMO2] and I advised you yesterday, you are restricted from any 7th Floor office until the Incident regarding your alleged assault on [a seventh floor employee] is resolved or until you are given specific permission to resume normal activities by [RMO2] or me. Any legal services you provide to Acquisition will be through review of case flies or phone calls. Personal contact will not be allowed at this lime. If you have questions please see me or [RMO2].
ROI, Exhibit C3, p. 378 of ROI, also numbered p. 353
Furthermore, an email from Complainant to RMOs 1 & 2, dated April 30, 2009, shows that Complainant was fully aware that she had been barred from the entire seventh floor after being accused of assaulting an employee from that office. See id., p. 368, also numbered p. 343.
With regard to Complainant allegedly being forced to meet with management to discuss work assignments, we initially find such a claim disingenuous since Complainant has also complained that she was not given enough work assignments. In any event the Agency articulated a legitimate nondiscriminatory reason for its action when RMO2 denied that Complainant was forced to meet with her but rather that "I wanted to sit down with her and [RMO1] to discuss a way forward. How are we going to work through this? How are we going to make assignments?" ROI, Affidavit B2, pp. 60-61. RMO2 further averred that she had told Complainant two days beforehand about the meeting with RMO1 and that Complainant voiced no objections at the time but that as soon as RMO1 walked into the meeting, Complainant got up and left. See id. RMO2 averred that "I don't view having - - asking an attorney to meet with me and her immediate supervisor - - any attorney, as forcing, harassment, hostile work environment. That's what has to be done. That's what should be done." Id.
With regard to Complainant's allegation that she was forced to meet with RMO2 to discuss Complainant traveling to St. Louis for work, RMO2 averred that any attorney in Complainant's position was occasionally required to travel for work and that prior to Complainant's telling her that she would not travel, RMO2 had not known about Complainant's feelings on this matter. See Affidavit B2, pp. 64-71. RMO2 further averred that, in the end, Complainant was not required to travel to St. Louis. See id., p. 70.
Complainant maintains that RMO2 never responded to her emails by explaining to her why she was barred from the seventh floor. She further maintains that RMO2 was aware that a meeting with RMO1 present would make her uncomfortable. Finally, Complainant maintains that her position description does not indicate that travel was required. Following a review of the record we find that Complainant has not shown that the Agency's articulated reasons were pretextual, nor has she shown the presence of a material issue. Assuming arguendo that RMO2 did not respond to Complainant's emails, did force Complainant to meet with her and RMO1, and did ask Complainant to travel to St. Louis, Complainant has not shown that such actions were based on discrimination against her protected bases.
Proposed Suspension and Letter of Reprimand
With regard to claims 4 and 8, the record shows that the proposed suspension was reduced to the letter of reprimand. See ROI, Affidavits B2, p. 58-59 and B3, p. 39. As such, these two claims merged into one when the proposed suspension became a reprimand. RMO 1 averred that the letter of reprimand was issued because of the seventh-floor incident and because of Complainant's subsequent violation of the instruction not to visit the seventh floor. See id., pp. 38-39. The letter of reprimand itself, signed by RMO2, states:
On April 26, 2009, you were involved in an altercation with an OA&L manager. You were accused of inappropriate behavior and admitted using inappropriate language. As the result the altercation, OA&L management asked that you be prohibited from entering their office space. Both, [RMO1] and I directed you to not enter any floor office area until you were given specific permission to resume normal activities. You were also advised that your OA&L legal services were to be limited to case file review or telephone calls. In violation of the direct order, you were observed walking through the 7th floor OA&L office area on June 10, 2009. Your failure to follow instructions will not be tolerated.
ROI, Exhibit C3, p. 347, also numbered 322.
On appeal, Complainant argues "there is no evidence in the record . . . that I admitted use of inappropriate language" but then immediately contradicts this by stating "the record evidence shows I admitted using two or three curse words during my discussion with the alleged assault victim on April 28, 2009, but that the words were not directed at him." Complainant's Appeal Brief, unnumbered page. While Complainant maintains that management was aware that no assault occurred Complainant does not deny that she went to the seventh floor despite being told not to. Complainant has not shown the presence of a material fact, nor has she shown that the Agency's articulated reasons for its actions were pretextual or that discrimination occurred.
Telework denied
RMO1 averred that Complainant's request to do telework was denied because of a work policy that required that employees demonstrate:
reliability and responsibility. And at the time that the decision was made, there had been some issues with regards some work that [Complainant] was handling that I didn't believe that she was handling properly, that she was having issues with leave, coming in late, leaving early, and using sick leave. And it seemed to be a pattern that I did not think was appropriate.
ROI, Affidavit B3, pp. 45-46
In addition, correspondence from RMO2 to Complainant responding to her telework request said that the request was denied because Complainant was not a "suitable candidate" because of: her failure to communicate with RMO1, to include the meeting with RMOs 1 & 2 during which Complainant walked out as soon RMO1 walked in to the room; Complainant's attendance and use of leave; and a work assignment that was "significantly overdue." See ROI Exhibit C3, pp. 334-335, also numbered pp. 309-310. Complainant denied that she was abusing the Agency's leave policies and argues that all her leave requests, whether for sick or annual leave, were ultimately approved. In addition, Complainant disputes that she was responsible for the late work assignment but that even if she was it was just one assignment and should not have been used to deny her telework. We note that merely because Complainant's leave requests were ultimately granted does not tend to establish that the Agency's articulated reasons for the telework denial are pretextual. Despite Complainant's claim that a material issue of fact exists, we find that Complainant has not shown the presence of such a material issue of fact. Nor has Complainant shown, by a preponderance of the evidence, that the Agency's articulated reasons for denying her telework request are a pretext to mast intentional discrimination.
Fully Successful Evaluation
The AJ noted that neither party had addressed this issue during the investigation and therefore concluded that the claim had been waived. On appeal, Complainant notes that on January 5, 2010 the Agency recognized Complainant's amendment of her complaint to include contesting of the 2009 evaluation but that the investigator failed to ask any questions or conduct an investigation on this matter. See ROI, Exhibit C3, pp 129-135, also numbered pp. 104-109. The record does not show any investigation of this matter. Accordingly this claim should be returned to the Agency for an investigation.
Harassment
Finally, to the extent that Complainant is alleging that she was subjected to a hostile work environment, we find under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994). A prima facie case of hostile work environment is precluded based on our finding that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus or retaliatory motive. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not met her burden of establishing a material issue of fact or of establishing, by a preponderance of the evidence, that discrimination occurred with respect to claims 1 through 9. With respect to claim 10, we note that no investigation was conducted and thus this matter needs to be returned for an investigation. We therefore AFFIRM the Agency's Final Order in part and REVERSE in part, and we REMAND this case to the Agency to take remedial action in accordance with this decision and the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claim (claim 10 - Complainant's 2009 Fully Successful Evaluation) in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claim within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
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 (T0610)
This decision affirms the Agency's final action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (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
August 22, 2013
__________________
Date
1 Complainant's position is variously described in the record as "Assistant Counsel," "Acquisition Attorney," and "General Attorney."
2 We note that the claims were numbered differently in the AJ's Decision.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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