0720050094
08-07-2008
Leisha Guilbeaux, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Leisha Guilbeaux,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 07200500941
Hearing No. 110-2005-00142X-PD
Agency Nos. 4H-300-0114-04, 4H-300-204-04
DECISION
Following its August 12, 2005 notice of final action, the agency filed
a timely appeal which the Commission accepts pursuant to 29 C.F.R. �
1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Sales, Service Distribution Clerk in the agency's Briarcliff Station
in Atlanta, Georgia. On March 9, 2004, complainant requested temporary
light duty. Along with her request, complainant submitted a December 17,
2003 Certification of Health Care Provider, in which her doctor noted
that she suffers from chronic low back pain and mild degenerative changes.
The doctor indicated that complainant is incapacitated from her low back
pain for 2-4 days at a time approximately 6 times per year. The physician
noted complainant should avoid prolonged standing, bending, and lifting.
Additionally, complainant submitted a list of restrictions accompanying
her medical documentation which noted that she was restricted from
lifting 15 pounds or more, could not walk more than 1-2 hours per day,
and could not stand for more than 1-2 hours per day. Complainant did not
return to work after completing the light duty request. On March 12,
2004, complainant's supervisor denied complainant's light duty request
because the supervisor believed that complainant had requested a chair
with lumbar support which the supervisor did not have and was unable
to purchase. The record reflects complainant's supervisor believed he
needed to respond to the request within three days. On March 17, 2004,
the agency sent complainant a letter denying her accommodation request
on the grounds that it was unable to provide work within her medical
restrictions.
Thereafter, on March 18, 2004, complainant provided a Duty Status
Report regarding her chronic left knee pain which noted complainant
was restricted from lifting 15 pounds or more intermittently, could not
stand intermittently more than 1-2 hours per day, could not walk more
than 1-2 hours per day, and could sit 1-8 hours per day.
The record reflects that even after the initial denial, complainant's
supervisor was still attempting to identify a job or other accommodation
that would meet complainant's restrictions.
On April 20, 2004, management signed complainant's March 9, 2004 Request
for Temporary Light Duty, indicating it could provide complainant an
assignment in pay location 545 with the hours of 8:45 to 5:45. The record
reveals complainant was offered this assignment via telephone by Person
A of Labor Relations. After asking what the specific job duties would
entail, complainant states that she did not accept the offer, because
she did not get a description of the specific job duties. Person A
stated that she would need to ask complainant's manager what the duties
would be. Complainant states that Person A did not contact her again
regarding the job duties.
Although complainant provided a Duty Status Report on March 18, 2004,
she did not provide a Work Capability Certificate for her chronic low
back pain releasing her to return to work on March 18, 2004 until May
14, 2004, at which time she submitted another Request for Temporary
Light Duty. The examining physician stated that complainant's condition
can be aggravated by prolonged standing, bending, and heavy lifting,
and noted that she has periodic flare ups of her back pain.
In the Agency's May 24, 2004 response to complainant's May 14, 2004
Request for Temporary Light Duty, management indicated complainant could
be provided an assignment for a period of 30 days in pay location 545
with the hours of 8:45 to 5:45. This offer was again communicated to
complainant by Person A of Labor Relations. On the second page of the
assignment, complainant did not accept the offer. At the bottom of the
offer, below complainant's signature and date (May 28, 2004), she stated
that the offer is based on her continuing to work as a window clerk,
working with a stool, in the Postal Store. Complainant stated that
she tried this for 8 consecutive months and it did not work. Further,
complainant noted that the offer did not indicate specific duties
before commitment and thus, she asked for verbal discussion of her
duties with management. Complainant testified that she did not commit
to accepting the offer because she "would like to talk with a manager
or supervisor to see what my duties would be to make sure they were
within my restrictions." (Transcript, page 145.) After the complainant
spoke with her manager regarding the duties related to the job offer,
the manager stated that they would work with her in her limitations.
(Transcript, page 66.)
On July 1, 2004, the agency offered complainant a Modified Assignment
(Limited Duty) for pay location 545 with the hours of 8:45 to 5:45 in the
position of Sales/Service Clerk. The duties of the modified assignment
were writing up certifieds; return to sender mail; processing passports;
culling collection mail; processing business reply mail; and performing
other duties that fall within physical limitations. The offer noted that
the physical requirements of the modified assignment are lifting/carrying
up to 15 pounds; alternating standing; walking not over 1-2 hours;
pushing and pulling not over 1-2 hours. On July 8, 2004, complainant
accepted the modified assignment.
On March 17, 2004, and April 12, 2004, complainant contacted an EEO
Counselor and filed two formal EEO complaints both received by the
agency on July 30, 2004, alleging that she was discriminated against
on the bases of disability (back injury), age (D.O.B. 03/28/61), and in
reprisal for prior protected EEO activity when:
1. On February 18, 2004, complainant was instructed to go home and change
her clothes because she was not in uniform; and
2. On March 17, 2004, complainant was denied a light duty assignment.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant requested
a hearing and on June 2, 2005, the AJ held a hearing on liability and
a separate hearing on damages. Thereafter, on July 6, 2005, the AJ
issued separate decisions on liability and damages. In his decision
on liability, the AJ found complainant was not aggrieved by issue (1)
and dismissed this issue for failure to state a claim. With regard to
issue (2), the AJ found complainant failed to establish a prima facie
case of discrimination based on reprisal or age. However, the AJ found
the agency failed to accommodate complainant's disability.
With regard to her disability claim, the AJ noted that complainant
has a permanent back condition which prohibits her from, among other
things, lifting more than fifteen pounds. The AJ found complainant
is a qualified individual with a disability because her lifting
restriction substantially impairs the major life activity of working.
The AJ found the agency did not rebut the prima facie case. Further,
the AJ determined the agency did not give a clear explanation as to why
in 17 Post Offices in the entire metro area, and even beyond the metro
Atlanta area, work could not be found for complainant. The AJ noted
contradictions between RMO 1's testimony and RMO 2's testimony as to
whether RMO 1 could purchase a chair for complainant, with RMO 1 saying
he could not do this and RMO 2 saying he could do it. The AJ noted the
agency did not meet its ultimate burden of showing that it would have
been an undue hardship to accommodate complaint. The AJ noted that
complainant never made a request for a specific accommodation; rather,
she just requested light duty. The AJ recognized that the agency had
given complainant light duty on several prior occasions. Further, the
AJ noted that RMO 1's denial of knowledge of complainant's EEO complaint
was contradicted by documentation. The AJ found that "perhaps most
important" was RMO 2's testimony in which he admitted that the agency,
probably in hindsight, could have accommodated complainant. The AJ found
"it more likely than not that the Agency failed to take steps to make the
individual assessment of the Complainant's disability or to accommodate
her by letting her work light duty."
The AJ issued a separate decision on damages. The AJ awarded complainant
$5,000.00 for a period of two-and-a-half months of stress and frustration.
The agency also awarded complainant $750.00 for the repayment to her
mother for her repossessed car. Finally, the AJ ordered the agency to
restore 93 hours of annual leave to complainant.
On August 12, 2005, the agency issued a notice of final action accepting
the AJ's decision that complainant did not establish that she was
aggrieved by the issue of the uniform change and the AJ's decision that
complainant did not establish a prima facie case of age or retaliation
discrimination when she was denied a light-duty assignment. In its final
action, the agency rejected the AJ's finding that complainant proved
that she was subjected to disability discrimination. Specifically, the
agency stated the AJ incorrectly determined complainant's request for
light duty was a request for an accommodation. The agency also states
the AJ incorrectly found complainant was disabled since her condition
was not a permanent condition which substantially limits her in a major
life activity. Furthermore, the agency found that to the extent it could
be viewed that complainant made a request for accommodation, complainant
admitted that she received a means of addressing her restrictions on
prolonged standing on April 20, 2004. The agency also argued that the
AJ's analysis was flawed in that it converted a restriction on standing,
which was medically documented, into a requirement that a specific chair
be provided to her, which it claims was not a medical requirement but
a request made by complainant. The agency noted that a stool can be
a proper means of accommodating a standing restriction. Finally, the
agency claimed that the AJ made an erroneous finding of fact regarding
the period of time in which complainant was not working and an erroneous
finding of fact regarding the actual damages incurred during this period.
The agency also stated that the AJ failed to consider that to the extent
the light duty request is construed as a request for accommodation, the
contractual reasonable accommodation process, as embodied in Article 13
of the Collective Bargaining Agreement and the Employee Labor Relations
Manual, precludes any compensatory damages as the agency acted in
good faith.
The agency filed an appeal with the Commission following the issuance of
its final action. On appeal, the agency argues that complainant is not
substantially limited in a major life activity. The agency noted that
complainant's doctor reported that complainant has periodic back pain
when her back flares up and noted that complainant is only affected
by her low back pain for two to four days at a time, about six times
a year. The agency argues that sporadic symptoms cannot be considered
"substantially limiting" to complainant's ability to work or any other
major life activity. With regard to complainant's fifteen-pound lifting
restriction, the agency agued it was not substantially limiting.
The agency also states that assuming arguendo that complainant was
an individual with a disability, she was accommodated with light duty.
The agency notes that it offered complainant a stool to sit on and argued
that a stool is a reasonable accommodation for employees with standing
restrictions. The agency states it also accommodated complainant by
alternating her tasks and ensuring that she was only given tasks within
her lifting and other restrictions. The agency claims that any delay in
complainant's return to work was due to her decision not to accept the
agency's first two offers of accommodation and not due to the absence
of an offer of accommodation by the agency. The agency notes that
complainant's restrictions include prolonged standing, heavy lifting, and
repeated bending. The agency states there is no restriction requiring
the use of a chair with lumbar support (as opposed to a stool) anywhere
in the record. Rather, the agency states the chair is nothing more than
a potential means of accommodation requested by complainant and discussed
by RMO 1 and RMO 2. Based on the medical information provided to the
agency, it states that a stool would satisfy complainant's restriction
of not staying on her feet for prolonged periods of time.
Finally, with regard to the AJ's award of damages, the agency notes
that complainant was offered light duty in April 2004, and in May 2004.
The agency notes that complainant acknowledged that she refused to return
to work in April and May of 2004. The agency states that complainant's
refusal to work was voluntary decisions and argues, that she cannot be
reimbursed for the time period she chose not to work Thus, the agency
states that even if complainant is entitled to damages, $2,000.00 is the
appropriate amount of damages for complainant. Additionally, the agency
claims the AJ's award of $750 for the repossession of complainant's car
was unwarranted and excessive. The agency notes that complainant paid
a repossession fee of $120.00 and the rest of the money paid during the
relevant time period was for regular car payments which complainant had
failed to make. Thus, the agency states that to the extent an award is
appropriate, it should be limited to $120.00. With regard to annual
leave, the agency notes that complainant testified that the value of
annual leave at issue is $663.00. Thus, the agency states that to the
extent the Commission finds an award is appropriate, it should be for
$663.00 and not for 93 hours of annual leave.
Complainant also filed an appeal from the agency's notice of final action.
On appeal, complainant states that she proved age discrimination
by providing a 1412 for comparative employee 1, CE1, who worked the
window, which is complainant's bid. Further, complainant states she
also provided documentation in support of retaliation in that she had
no previous discipline before becoming a union steward in June 2002.
Complainant states that ELM 17.7 confirms that she should not have been
required to wear a uniform since she did not work on the window for a
minimum of four hours.
Additionally, complainant claims the AJ erred in his damages award.
Specifically, complainant states that when light duty was approved
in April 2004, no job description was given. Complainant states that
in May 2004, she was told that she would be accommodated with a stool
and responded that her doctor recommended back support while sitting.
Complainant notes that she received a limited duty offer in June 2004,
after her on-the-job injury was approved by the Department of Labor.
She states that her limited duty assignment became effective July 2, 2004.
Complainant states that although the AJ awarded her damages for stress
and anxiety during March and April of 2004, she claims she continued to
be stressed and under a doctor's care since July 2004, for depression
and anxiety disorder.2
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
At the outset, we find the AJ correctly dismissed issue (1) for failure to
state a claim. Specifically, with regard to her claim that on February
18, 2004, complainant was sent home to put on her uniform, we find
complainant has failed to show a harm or loss to a term, condition,
or privilege of employment. See 29 C.F.R. � 1614.107(a)(1).
Denial of Reasonable Accommodation
With regard to issue (2), complainant claims that she was denied a
reasonable accommodation on March 17, 2004, when the agency denied her
request for light duty.
The Rehabilitation Act of 1973 prohibits discrimination against qualified
disabled individuals. See 29 C.F.R. � 1630. In order to establish
that complainant was denied a reasonable accommodation, complainant must
show that: (1) she is an individual with a disability, as defined by 29
C.F.R. � 1630.2(g); (2) she is a qualified individual with a disability
pursuant to 29 C.F. R. � 1630.2(m); and (3) the agency failed to provide
a reasonable accommodation. See Enforcement Guidance: Reasonable
Accommodation and Undue Hardship under the Americans with Disabilities
Act, EEOC No. 915.002 (October 17, 2002) ("Enforcement Guidance").
An "individual with a disability" is one who: (1) has a physical or mental
impairment that substantially limits one or more major life activities;
(2) has a record of such impairment; or (3) is regarded as having such
an impairment. 29 C.F.R. � 1630.2(g). Major life activities include,
but are not limited to, caring for oneself, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working.
Sitting, standing, lifting, and reaching are also recognized as major
life activities. Interpretive Guidance on Title I of the Americans
with Disabilities, Appendix to 29 C.F.R. � 1630.2(i); see also Haygood
v. United States Postal Service, EEOC Appeal No. 01976371 (April 25,
2000). A qualified individual with a disability is one who satisfies
the requirements for the employment position he holds or desires and
can perform the essential requirements of that position with or without
reasonable accommodation.
An impairment is substantially limiting when it prevents an individual
from performing a major life activity or when it significantly restricts
the condition, manner or duration under which an individual can perform
a major life activity. 29 C.F.R. � 1630.2(j). The individual's ability
to perform the major life activity must be restricted as compared to
the ability of the average person in the general population to perform
the activity. Id.
Upon review, we find the AJ correctly determined that complainant was an
individual with a disability. Specifically, we note the record reveals
that complainant suffered from chronic, low back pain. A Work Capability
Certificate signed by an examining physician which is dated May 14, 2004,
states that complainant has "chronic low back pain" and notes that she has
"periodic flares of her back pain." A December 17, 2003 Certification
of Health Care Provider signed by the same physician who signed the Work
Capability Certificate on May 14, 2004, noted that complainant suffers
from "chronic low back pain since 1985" and mild degenerative changes.
Question 5(c) on the Certification of Health Care Provider asked: "If
the condition is a chronic condition . . ., state whether the patient
is presently incapacitated and the likely duration and frequency
of episodes of incapacity?" In a footnote, the form explains that:
"`Incapacity,' for the purposes of FMLA, is defined to mean inability to
work, attend school or perform other regular daily activities due to the
serious health condition, treatment therefor, or recovery therefrom."
The physician responded: "Ms. Guilbeaux is incapacitated from her
low back pain for 2 - 4 days at a time. This occurs usually 6x/year."
It is precisely this Certification of Health Care Provider (along with
the Work Capability Certificate) that the agency refers to on appeal,
when it argues that complainant is only occasionally affected by her
back pain. The agency, however, ignores the fact that complainant,
when asked at the hearing how much she could lift, testified: "Up to
15 pounds on a good day that is when I'm pretty much healthy, I guess.
That is one of my healthiest days." Hearing Transcript (HT) at 84.
The agency did not rebut that testimony at the hearing. Furthermore,
we find that although the Certification of Health Care Provider states
that complainant is "incapacitated" for a certain period of time, there
is no indication that the Certification of Health Care Provider ever
indicated that complainant's lifting restrictions were somehow limited
to those incapacitation periods. Additionally, complainant submitted a
list of restrictions accompanying her medical documentation which noted
that she was restricted from lifting 15 pounds or more, could not walk
more than 1-2 hours per day, and could not stand for more than 1-2 hours
per day.3
Based on the record, we find complainant has shown that she is
substantially limited in the major life activity of lifting, in that
she could not lift more than fifteen pounds. Higgins v. United States
Postal Service, EEOC Appeal No. 07A30086 (September 14, 2005).
Additionally, we find the record reveals that the agency improperly
denied complainant's light duty request on March 17, 2004, without making
an individualized assessment of her disability. Further, although the
record contains evidence that management agreed to provide complainant
a light duty assignment on April 20, 2004, and May 24, 2004, we find
no evidence that the agency actually offered complainant a light duty
assignment in accordance with her 15-pound lifting restriction. Moreover,
we find the agency failed to meet its burden to show that it would have
been an undue burden to accommodate complainant.
Moreover, we find the record supports the AJ's determination that
complainant failed to establish that she was subjected to discrimination
based on age or in reprisal for prior protected activity. Specifically,
we find complainant failed to show that the agency's actions were
pretext for discrimination based on age or in reprisal for prior
protected activity.
Upon review of the record, we find there is an absence of substantial
evidence to support the AJ's finding that complainant was entitled to
compensatory damages. Under Section 102 of the Civil Rights Act of
1991 (CRA), compensatory damages may be awarded for pecuniary losses,
emotional pain, suffering, inconvenience, mental anguish, and loss of
enjoyment of life. However, Section 102 of the CRA also provides that
an agency is not liable for compensatory damages in cases of disability
discrimination where it demonstrates that it made a good faith effort
to accommodate the complainant's disability.
A good faith effort can be demonstrated by proof that the agency,
in consultation with the disabled individual, attempted to identify
and make a reasonable accommodation. See Schauer v. Social Security
Administration, EEOC Appeal No. 01970854 (July 13, 2001) (citation
omitted). In the case at hand, the agency improperly denied complainant's
request for a light duty position as an accommodation on March 17,
2004. However, the record reveals that following the initial denial,
the agency was still considering other possible light duty assignments
for complainant. We note that after complainant submitted her Duty
Status Report dated March 18, 2004, the agency, without additional
prompting from complainant, made her a light duty offer on April 20,
2004. The record then reveals that following complainant's May 14, 2004
submission of a Request for Temporary Light Duty and Work Capability
Certificate effective March 18, 2004, the agency made a second offer
of light duty on May 24, 2004. The agency made a third offer about a
month later on July 1, 2004, which was accepted by the complainant.
Although the agency stayed in communication with complainant and attempted
to identify a reasonable accommodation for her, the agency could have
been more responsive and diligent in communicating with complainant
throughout the interactive accommodation process. Therefore, in this
case, we find that the agency's efforts, although not sufficient to
afford a reasonable accommodation, were adequate to show a good faith
effort to accommodate complainant. Consequently, we find complainant
is not entitled to receive compensatory damages.
Restoration of Leave
The hearing testimony reveals that complainant used 93 hours of annual
leave following the agency's March 17, 2004 denial of her request for
an accommodation. Apparently, this leave was taken as a result of
the agency's failure to accommodate complainant. Upon review, we find
substantial evidence supports the AJ's decision restoring 93 hours of
annual leave to complainant.
CONCLUSION
Accordingly, the agency's notice of final action is AFFIRMED in part,
REVERSED in part and the matter is REMANDED to the agency for further
processing in accordance with the Order herein.
ORDER
The agency is ordered to take the following actions:
1. Within 30 days of the date this decision becomes final the agency
shall restore 93 hours of annual leave to complainant.
2. Within 180 days of the date this decision becomes final, the agency
shall train all agency employees in the Briarcliff Station in Atlanta,
Georgia responsible for the denial of a reasonable accommodation to
complainant. The training shall concern the Rehabilitation Act with an
emphasis on reasonable accommodation and the agency's duties to ensure
that similar violations do not occur.
3. Within 30 days of the date this decision becomes final, the agency
shall consider taking disciplinary action against the individual or
individuals, still working for the agency, who were responsible for
denying complainant a reasonable accommodation. If the agency decides
to take disciplinary action, it shall identify in a compliance report the
action taken. If the agency decides not to take disciplinary action, it
shall set forth in its compliance report the reason(s) for its decision
not to impose discipline.
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 documentation indicating that the
corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Briarcliff Station in Atlanta,
Georgia 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.
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 (T0900)
This decision affirms the agency's final decision/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 (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:
______________________________
Stephen Llewellyn
Executive Officer
Executive Secretariat
August 7, 2008
__________________
Date
1 Due to a new data system, your case has been redesignated with the
above referenced appeal number.
2 We note that complainant also filed a brief dated August 7, 2006,
which will not be considered in this decision because it was filed well
beyond the time limit for filing a brief.
3 We note that this list of restrictions accompanied, according to
complainant's testimony at the hearing, the Certification of Health
Care Provider. The agency did not rebut complainant's testimony at the
hearing regarding her statements about the nature of this document.
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07200500
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, D.C. 20507
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0720050094