0120102267
08-22-2013
Joanna LaBastide, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Joanna LaBastide,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120102267
Agency No. HQ-08-0658-SSA
DECISION
On May 5, 2010, Complainant filed an appeal from the Agency's April 5, 2010, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. The Commission 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 a Motor Vehicle Operator (MVO) at the Agency's Transportation Branch at its Headquarters in Baltimore, Maryland. In her position, Complainant was expected to drive executive staff, deliver furniture, and complete mail, bus and truck runs. Complainant was the only female MVO in the office.
Complainant contacted an EEO Counselor regarding the alleged harassment on June 23, 2008. On October 28, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African American), sex (female), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when she was subjected to ongoing harassment.
Specifically, Complainant asserted that she was subjected the race and sex discrimination by her second line supervisor, the Transportation Officer (African American female) when:
1. On June 4, 2008, Complainant was forced by the Transportation Officer to drive a van with a soiled driver's seat on June 4, 2008. Complainant indicated that the previous driver soiled the seat during an occurrence of diarrhea.
2. She took no action when Complainant complained to her that, on June 10, 2008, Co-Worker 1 (Caucasian male) called her a "bitch" twice, a "motherfucker," a "female dog," and threatened her by saying, "that bitch will get her ass kicked." Complainant said that he had also commented on Complainant's breasts in the past by saying, "you could put an eye out with those things." Complainant also alleged that the Transportation Officer told her to keep her concerns "in house" and not take it "across the street" [to EEO] where upper level management would learn of it.
Complainant further alleged that she was subjected to retaliation by the Transportation Officer, who was responsible for giving her assignments, for complaining about Co-Worker 1 and subsequently seeking EEO counseling, as well as race and sex discrimination. In support of this claim, Complainant alleged the following incidents occurred:
3. Complainant was given unfavorable work assignments that included:
a. The Transportation Officer assigned Complainant to an early morning hotel run and supply truck that was already late on June 20, 2008.
b. Complainant noticed an increased workload with more travel runs compared to other WG-7 truck drivers on June 23, 2008.
c. The Transportation Officer changed Complainant's work assignment from a local run to a run to Washington, D.C, after a co-worker was given a choice of assignments. Complainant did not receive a choice on July 2, 2008.
d. The Transportation Officer changed Complainant's work assignment by pulling her from a local run to a run in Washington, D.C., on July 18, 2008.
4. The Transportation Officer verbally chastised her on June 24, 2008, about bringing a Union official into the driver's locker room.
5. The Transportation Officer requested confidential information from the Employee Assistance Program (EAP) Counselor on July 21, 2008, to prove that Complainant was attending EAP appointments. She was treated like a liar.
6. She was denied an overtime request for August 16, 2008.
7. The Transportation Officer forced Complainant to work through an unpaid 30-minute lunch break on September 2, 2008, after which Complainant became sick.
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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
The Agency's final decision found that Complainant failed to establish her claim of harassment. The Agency looked at events (1) and (2) separately as a claim of harassment. The Agency found that these events taken together were not sufficiently severe or pervasive enough to establish a claim of harassment. The Agency noted that Complainant did not provide sufficient evidence to establish that the name calling occurred on a regular basis. The Agency then found that management denied that inappropriate activity had occurred. The Agency finally determined that Complainant failed to show pretext.
The Agency then turned to the events raised in claims (3) - (7). The Agency found that Complainant established a prima facie case of reprisal. The Agency noted that Complainant made management aware of the alleged sexual harassment and subsequently these events occurred. The Agency found that management provided legitimate, non-discriminatory reasons for each of the actions. Further, the Agency found that Complainant did not show that the reasons were pretext. As such, the Agency concluded that Complainant did not show that she was subjected to unlawful retaliation. The Agency noted that Complainant had two witnesses who averred that Complainant was treated differently than others based on her race and sex. Furthermore, one of the witnesses stated that Complainant was labeled a "troublemaker/complainer" by management. However, the Agency found that their statements lacked concrete testimony to find that Complainant was in fact treated differently because of her race, sex or prior protected activity.
This appeal followed without specific comment. The Agency asked that the Commission affirm its decision finding no discrimination.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (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").
As an initial matter, we find that the Agency failed to correctly identify Complainant's claim. As noted above, the Agency's final decision treated Complainant's complaint as two claims of harassment. However, a review of the record clearly shows that Complainant asserted that all the events occurred because of her race and sex. In her affidavit, when the investigator asked Complainant about each event, Complainant indicated her belief that the Transportation Officer treated her differently because she was the only female MVO and because she is African American. Therefore, we find that Complainant raised all the events listed above as part of her claim of harassment based on race and sex. In addition, events (3) - (7) occurred after she initially reported the alleged sexual harassment. As such, Complainant raised events (3) - (7) as a claim of retaliatory harassment.
It is well-settled that harassment based on an individual's race, sex and protected EEO activity is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, Complainant must show that: (1) she belongs to the statutorily protected classes and/or engaged in prior EEO activity; (2) she was subjected to unwelcome conduct related to her membership in those classes and her prior EEO activity; (3) the harassment complained of was based on her race, sex sand/or prior EEO activity; (4) the harassment had the purpose or effect of unreasonably interfering with his/her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994).
There is no dispute that Complainant has met elements (1) of this analysis as she is an African-American female who alleges she was subjected to unwelcomed conduct as described in her complaint and during the investigation. In addition, the record shows that she complained about the conduct of Co-Worker 1 to management and later sought EEO counseling, and alleges that she was subsequently subjected to retaliatory harassment from management.
As to elements (2) and (3), Complainant must establish that she was subjected to unwelcome conduct based on her race, sex and/or prior EEO activity. Complainant asserted that she has been singled out by the Transportation Officer because she is African American and the only female MVO with her facility. She notes that the Transportation Officer gave her assignments and designated which vehicle she was to operate to complete those assignments. Complainant asserted that the Transportation Officer gave assignments to Complainant because she perceived her as being weak or sensitive.
In addition to Complainant's affidavit, the record includes an affidavit from a Management Assistant (MA). The MA averred that the Transportation Officer treated Complainant differently than the male drivers. He indicated that there used to be other female drivers in the workplace but the Transportation Officer got rid of them "by being overly demanding." He stated that the Transportation Officer was harder on Complainant than the other drivers. She expected Complainant to work faster and longer without letting up on her. The MA noted that the Transportation Officer did not treat male drivers or Caucasian drivers the same way she treated Complainant. He also averred that the Transportation Officer treated male drivers differently "by 'looking the other way' when they do anything inappropriate." The MA indicated that the Transportation Officer gave more work to Complainant than the other Caucasian male drivers and she give Complainant undesirable assignments. Based on the affidavits by Complainant and the MA, we find that there is sufficient evidence to establish that Complainant is treated differently by the Transportation Officer because of her race and sex.
As for event (1), Complainant asserted that the Transportation Officer forced Complainant to drive a van with a soiled driver's seat on June 4, 2008. Complainant indicated that it was known in the office that Van #104 was driven by someone (Driver) who had a diarrhea incident while driving his route on June 3, 2008. She noted that management had been talking about the incident on June 3, 2008. The MA averred in his affidavit that the Driver was upset with the Transportation Officer on June 3, 2008, because he told her of the incident and asked to go home to clean up. The Driver stated that the Transportation Officer did not allow him to do so and did not permit him to clean it up. As such, the MA believed that the Transportation Officer was aware of the incident and the soiled condition of the driver's seat.
The next day, on June 4, 2008, Complainant was assigned Van #104 by the Transportation Officer. She averred that she told the Transportation Officer about the diarrhea accident. Complainant claimed that the Transportation Officer insisted that there were no other cars available and that she could not provide her with plastic to at least cover the seat. It should be noted that Complainant's morning supervisor averred that he heard co-workers talking about a driver having an accident the night before in a van.
In response to this claim, the Transportation Officer averred that she was not aware of the soiled condition nor was she made aware of the seat by Complainant. She stated that she "learned of it from someone else." She also indicated that she would never allow Complainant to drive a van with a soiled seat and she would have assigned another vehicle to Complainant.
The affidavit provided by the Second Line Supervisor is simply inconsistent with the other sworn statements in the record. Based on the affidavits from Complainant, the MA and the morning supervisor, it seemed clear that it was known on June 3 and June 4 that the van driven by the Driver had a soiled seat due to a diarrhea incident. Furthermore, it seems more credible that if Complainant was aware of the diarrhea on the seat, she would have asked for another van assignment. It is inconsistent for the Transportation Officer to say that Complainant would have been given another vehicle. Furthermore, we note that the Transportation Officer was vague in her affidavit concerning this event. For example, she noted that she became aware of the situation "from someone else" without providing information as to who informed her of the soiled seat and when. In addition, we note that the Agency's investigator failed to obtain an affidavit from the Driver involved confirming whether the Transportation Officer was aware of the soiled seat and when. Based on the information provided by Complainant and the supporting statement from the MA, we find that Complainant has established that the event occurred as she described.
In event (2), Complainant asserted that Co-Worker 1 called her a "bitch" twice, a "motherfucker," a "female dog," and threatened her by saying, "that bitch will get her ass kicked" and told her on another occasion, "You could put an eye out with those things" referring to Complainant's breasts. Complainant reported the events to the Transportation Officer, who she alleges told her not to report the matter to upper level management and did not discipline Co-Worker 1. As such, she believed the Transportation Officer let Co-Worker 1 get away with inappropriate behavior. This assertion is supported by the MA who indicated that the Transportation Officer would look the other way when Caucasian male co-workers acted inappropriately.
Co-Worker 2 averred that he was present on June 10, 2008, when Co-Worker called Complainant names. He gave a statement of his observations to the Transportation Officer. He averred that cursing and inappropriate comments occurred regularly in the locker room, but he had not heard any other comments directed at Complainant.
The Transportation Officer stated in her affidavit that she spoke with Co-Worker 1, who denied using offensive language towards Complainant but admitted that he "may have called her names but did not state what he specifically said to her." As this was Co-Worker 1's first offense, the Transportation Officer decided not to discipline him, but place Complainant's statement about the incident in Co-Worker 1's personnel file for 90 days.
The Transportation Officer also averred that the office had a talk about inappropriate behavior in the workplace which she could not recall whether it was planned before or after Complainant's complaint. There is no evidence supporting a finding that this talk occurred in response to Complainant's concerns about Co-Worker 1.
Complainant further alleged that, following her contact with the EEO Counselor on June 23, 2008, she was also subjected to events (3)-(7) in retaliation for seeking counseling. Within days of the contact, Complainant alleged that events (3)-(7) occurred. She further alleges that the Transportation Officer had warned her against taking her complaint "across the street" where upper level management would know about it. We also note that Co-Worker 2 averred that the Transportation Officer treats Complainant differently. He stated that the Transportation Officer became upset with Complainant for contacting the EEO Office. Since then, Complainant has been labeled a "troublemaker or a complainer." He also noted that the Transportation Officer warned him that if Co-Worker 2 got involved, it would be likely that he would be "dragged down with everyone else."
In allegation (3), Complainant raised a series of events in which she believed she was given unfavorable assignments and an increased workload because of her race, sex and/or retaliation. She noted on June 20, 2008, she was given a morning hotel run followed by a supply truck run which was already late. Complainant asserted that she explained to the Transportation Officer that she just came off of a run and that the supply run would be leaving late. She claimed that she asked the Transportation Officer if someone else was free to do the supply run. She indicated that the Transportation Officer said that no one was available and that she did not care about Complainant's concerns. On the way out, Complainant ran into another driver, Co-Worker 3, who was getting ready for a mail run. Co-Worker 3 told Complainant that he had been in the office and did not have a run in the morning. When Complainant told the Transportation Officer about Co-Worker 3, she averred that she did not respond. In response to this event, management witnesses all indicated "no knowledge" or "no recollection" of this event. Finding no evidence to specifically contradict Complainant's version of the events, we find that the event alleged on June 20, 2008, occurred as indicated by Complainant.
Complainant also asserted that she had increased workloads in June 2008. She noted that the Transportation Officer gave Complainant more assignments driving into Washington, D.C. Specifically, she averred that she would drive into Washington, D.C., two to three times a week while the other drivers would get a run only once a week into Washington, D.C. Complainant complained about the workload in July 2008, and was told that the Transportation Officer was trying to wear Complainant down. In conjunction with the workloads, Complainant averred that Co-Worker 1 was provided with a choice of assignments while she is not given such an option. The MA averred that he believes that Complainant was given more runs, noting that she was always working while the other drivers have down time and often no assigned runs.
In response to this claim, the Transportation Officer stated that assignments are received all the time and denied every intentionally giving Complainant more travel runs than the others. She flatly denied giving drivers the choice of assignments. She indicated that she would allow for changes in assignments due to illness or other legitimate reasons. Again, we find that the Transportation Officer did not provide any specific response to Complainant's assertion regarding workloads. Further, there is no other evidence to contradict Complainant's statements concerning her workload. As to Complainant's claim that Co-Worker 1 is given a choice in his assignments, we note that the investigator did not obtain an affidavit from him or other evidence to support the Transportation Officer's blanket denial of the event. Therefore, we find that Complainant has shown that event (4) occurred.
In event (4), Complainant asserted that she was chastised on June 24, 2008, about bringing Union personnel into the drivers' locker room. The Transportation Officer indicated that she just wanted to be informed before Complainant brought her Union representative into the office. We find that Complainant has not shown that this event was related to the other incidents raised in support of her claim of harassment based on sex, race or retaliation. As such, we shall not consider this event in assessing whether Complainant has established the fourth prong of her prima facie case of harassment.
In addition, in event (5), Complainant alleged that she was asked to provide information from EAP. We note that Complainant was asked to provide the documents, but did not do so. Further, the MA noted that he was also asked to provide his EAP documentation. Therefore, we similarly cannot find that this event was connected to Complainant's other events raised in support of her claim of harassment based on race, sex and/or retaliation.
In event (6), Complainant asserted that she was denied overtime on August 16, 2008. Her supervisor averred that it was his error when he told her that she could not work overtime. He indicated that Complainant was ill and he mistakenly believed that she had the same illness as him and that she would need the overtime day to recover. Upon review, we find that this event occurred based on the decision of the supervisor, not the Transportation Officer. Complainant has not shown that this event is otherwise connected to the Transportation Officer. As such, we shall not consider event (7) as part of Complainant's claim of harassment based on sex and race.
Finally, in event (7), Complainant indicated that on September 2, 2008, Complainant was forced to work through lunch. Complainant indicated that she was assigned to drive three shuttles runs at 10:35 a.m., 11:35 a.m., and 12:35 a.m. Prior to the last run, Complainant was told that the Transportation Officer wanted Complainant to finish her last run before lunch. When she returned from the shuttle run, it was 12:40 and the Transportation Officer told her to do a supply truck run at 1:00. Complainant asserted that the Transportation Officer did not care. Complainant noted that for commercial runs, drivers needed more time. She could not eat and became nauseous and light-headed. She called her supervisor (Supervisor 2) who allowed her to go to the health suite where she was treated for dehydration. She also noted that Supervisor 2 stated that the Transportation Officer was going to change the story so that Complainant had time to eat. Complainant stated that the Transportation Officer would never treat her male, Caucasian co-workers this way.
In response to this claim, the Second Line Supervisor averred that she had no knowledge of Complainant becoming sick and that there was no set lunch hour. Supervisor 2 averred that Complainant returned at 12:15 from her shuttle run and he was able to push her next run until after 1:00, so she had time to eat. Upon review, we find that the versions of the events are inconsistent. We note that the Transportation Officer did not provide any specific evidence to contradict Complainant's version of the events. Further, Supervisor 2 averred that Complainant arrived at 12:15 p.m. which does not seem fall in line with her other shuttle runs which occurred at 35 minutes on the hour. Therefore, the Commission finds Complainant's version of the event (8) more credible.
Having found that Complainant was subjected to unwelcome conduct, at least in part motivated by her race, sex and/or prior EEO activity, we turn to the fourth element -- whether Complainant has shown that she was subjected to events, if taken as a whole, had the purpose or effect of unreasonably interfering with his/her work performance and/or creating an intimidating, hostile, or offensive work environment. The incidents must have been "sufficiently severe and pervasive to alter the conditions of the victim's employment and create an abusive working environment." Harris v. Forklift Sys. Inc., 510 U.S. 17, 21 (1993) (citations and internal quotations omitted); see also Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998). To ascertain this, we look at the totality of the circumstances, including the frequency of the discriminatory conduct; its severity; whether it was physically threatening or humiliating, or a mere offensive utterance; whether it was hostile or patently offensive; and whether the alleged harasser was a co-worker or a supervisor. See Harris, 510 U.S. at 23; see also Current Issues Guidance at 12. After careful review of the evidence, we find that the cumulative effect of the Transportation Officer's actions created a hostile work environment for Complainant. Considering the established events together, we find that Complainant has shown that she was subjected to actions which had the purpose or effect of creating an intimidating, hostile, or offensive work environment.
We now turn to whether there is a basis for imputing liability to the Agency for the Transportation Officer's actions. In Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998), the Supreme Court made clear that employers are subject to vicarious liability for unlawful harassment by supervisors. The standard of liability set forth in these decisions is premised on two principles: (1) an employer is responsible for the acts of its supervisors, and (2) employers should be encouraged to prevent harassment and employees should be encouraged to avoid or limit the harm from harassment. In order to accommodate these principles, the Court held that an employer is always liable for a supervisor's harassment if it culminates in a tangible employment action. No affirmative defense is available in such cases. EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002, at 7 (June 18, 1999) ("Vicarious Liability Guidance").
In this case, we find that the Transportation Officer's discriminatory/retaliatory harassment resulted, at least in part, in tangible employment actions. As the Transportation Officer provided Complainant with her work assignments, we conclude she used her supervisory authority to increase Complainant's workload and give her less desirable assignments because she was the only African American female MVO, as well as in retaliation for not heeding her warning not to take her complaints "across the street" to EEO where upper level management would learn of them. While the Transportation Manager was also an African American female, Complainant asserts that she was intimidated by her Caucasian male subordinates and treated them more favorably, including, as an example, ignoring Co-Worker 1's offensive behavior towards Complainant. Moreover, we note that within days of Complainant reporting the alleged harassment to an EEO counselor, she was subjected to a series of unfavorable assignments. Based on the weight of the evidence, we conclude that there is a basis for holding the Agency liable for the harassment which occurred based on Complainant's sex, race and/or EEO activity.
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 decision and REMAND the matter back to the Agency to take corrective action consistent with this decision and the Order below.
ORDER (C0610)
The Agency is ordered to take the following remedial action:
1. Within fifteen (15) calendar days of the date this decision becomes final, the Agency shall give complainant a notice of her right to submit objective evidence (pursuant to the guidance given in Carle v. Dep't. of the Navy, EEOC Appeal No. 01922369 (January 5, 1993)) in support of any claim she may have for compensatory damages. Complainant shall be provided with forty-five (45) calendar days from the date she receives the Agency's notice to submit her evidence. The Agency shall complete any additional investigation of the claim for compensatory damages within forty-five (45) calendar days of the date the Agency receives Complainant's claim/evidence of compensatory damages. Thereafter, the Agency shall process the claim in accordance with 29 C.F.R. � 1614.110.
2. The Agency is directed to conduct training for the individual referred to the Transportation Officer in this decision. The Agency shall address this employee's responsibilities with respect to eliminating harassment in the workplace.
3. The Agency shall consider taking appropriate disciplinary action against the individual referred to as the Transportation Officer in this decision. The Commission does not consider training to be disciplinary action. 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 shall post a notice in accordance with the paragraph below.
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 (G0610)
The Agency is ordered to post at its Transportation Branch at the Agency's Headquarters facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted by the Agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. Filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 22, 2013
__________________
Date
2
0120102267
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120102267