0120090440
08-19-2010
Maria S. Kavouras, Complainant, v. Lisa P. Jackson, Administrator, Environmental Protection Agency, Agency.
Maria S. Kavouras,
Complainant,
v.
Lisa P. Jackson,
Administrator,
Environmental Protection Agency,
Agency.
Appeal No. 0120090440
Agency No. 2007-0051-R11
DECISION
On November 6, 2008, Complainant filed an appeal from the Agency's September 30, 2008, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS Agency's final decision.
ISSUES PRESENTED
The issue presented is whether Complainant established that she was subjected to discrimination on the bases of sex and age.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked in the Agency's Office of General Counsel (OGC). Formal Complaint, at 1. Although OGC is headquartered in Washington, D.C., Complainant worked in the Cincinnati, Ohio office. Id.; Report of Investigation (ROI), at Ex. F12. Complainant was an Assistant General Counsel (AGC) 1 until March 18, 2007, when she was officially reassigned as an Attorney-Adviser (AA). ROI, at Ex. F12.
In 2006, a reorganization within OGC combined parts of the Finance and Operations Law Office (FOLO) with the Civil Rights Law Office (CRLO) to form the Civil Rights and Finance Law Office (CRFLO). ROI, Ex. F12, at 9; ROI, at 145. The Agency began planning the reorganization in March 2006 and finalized and implemented the reorganization package on August 25, 2006. ROI, Ex. F2, at 2; ROI, at 189. The reorganization's stated purpose was to improve management efficiency and effectiveness, optimize the use of OGC's limited number of SES supervisors, create offices of comparable and appropriate size, and enable OGC's senior managers to better allocate resources to reflect the Agency's overall priorities. ROI, at 145. As part of the finalized reorganization package, the Agency reassigned two AGCs (female, age unknown and male, age unknown)2 in the Civil Rights Law practice group to AAs.3 ROI, at Ex. F5; ROI, at 147, 159.
Complainant was an AGC in the Cincinnati practice group, one of five practice groups formerly part of FOLO and now part of CRFLO.4 ROI, at 159-60, 189. The Cincinnati practice group provided a broad range of legal services to the Agency's operations in Cincinnati and covered issues including appropriations law, contract law, employment law, ethics, information, property and claims law, assistance law, and intellectual property law. ROI, at 221-22. According to Complainant, an AGC is responsible for administrative and operational activities within the practice group; it is a managerial-type position but does not have hiring or firing authority. Complainant's Aff., at 1. The three-person Cincinnati practice group consisted of Complainant, an AA (AA1 - male, under 40 years of age),5 and a part-time employee who provided clerical support. ROI, Ex. F2, at 3; ROI, at 151, 160.
On January 31, 2007, Complainant met with CRFLO's Associate General Counsel (S1) and Deputy Associate General Counsel (S2) in Washington, D.C. for her 2006 Performance Appraisal and Recognition System (PARS) review. Complainant's Aff., at 1. Before giving Complainant her PARS review, S1 and S2 told her that they would be reassigning her from AGC to AA because they had decided to reduce the number of practice groups within CRFLO by eliminating the Cincinnati and RTP practice groups. Id.; ROI, Ex. F2, at 3. S1 and S2 had told the RTP practice group's AGC (male, age unknown) on January 30, 2007 of their decision to reassign him.6 ROI, Ex. F2, at 3.
At the same January 31, 2007, meeting, after learning of her pending reassignment, Complainant received a Fully Successful rating for her 2006 PARS review. ROI, at Ex. F6. Id. Of the five critical elements, Complainant received an Exceeds Expectations rating on two of the elements and a Fully Successful rating on three of the elements. Id. S1 rated each critical element, but did include any explanatory notes on his written evaluation of Complainant's performance.7 Id.
In a February 5, 2007, e-mail to S1, Complainant asked him to reconsider her proposed reassignment and outlined several reasons in support of her request. ROI, at 173.
On February 21, 2007, S1 and S2 called Complainant to respond to her February 5, 2007, email. Complainant's Aff., at 3; ROI, Ex. F2, at 4. During that call, they told Complainant that they had already processed the SF-52 for her reassignment on February 14, 2007, and again explained the reasons for her reassignment. Id.
In a February 22, 2007, e-mail to Complainant and to the RTP practice group's AGC, S1 confirmed that, as previously discussed, their reassignments were based on organizational efficiency and consistency, and not on their performance as AGCs. ROI, at 175.
Effective March 18, 2007, as a result of her reassignment from AGC to AA, Complainant was placed in the Procurement Law practice group. Complainant's Aff., at 3; ROI, at Ex. 12; ROI, at 190. According to Complainant, she continued to perform duties associated with the AGC position such as training, assigning and reviewing work, and coordinating daily operations, and continued to practice in substantive areas other than procurement law. Complainant's Aff., at 3. In addition, Complainant alleged that while her pay grade (GS-15) and occupational code (0905) remained the same, there were differences between the AGC and AA positions in terms of duties, end-of-year bonuses, and opportunities for training, travel, and career advancement. Complainant's Rebuttal, at 6-7; ROI, at 6.
On June 27, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and age (49) when:
1. on February 21, 2007, she was reassigned as an AA from an AGC; and
2. at her PARS review for 2006, she received a Fully Successful rating instead of the Exceeds Expectations rating that she felt she deserved.
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.
Initially, the Agency found that Complainant had established a prima facie case of age discrimination in claim 1, but had failed to establish a prima facie case of sex discrimination in claim 1 and of age or sex discrimination in claim 2. Agency's September 30, 2008 Final Decision (FAD), at 11, 14. Regarding claim 1, the Agency found that Complainant had failed to show that similarly-situated male AGCs were treated more favorably; instead, the Agency noted that two male AGCs also were reassigned to AAs during the reorganization. Id. at 11. Although Complainant asserted otherwise, the Agency found that Complainant was similarly situated to the three other reassigned AGCs because they all held the same job title, operated under the same position description, and reported to the same supervisors. Id. Regarding claim 2, the Agency found that Complainant had presented no evidence that she was adversely impacted by her performance evaluation because her Fully Successful rating did not lead to a loss of pay or position. Id. at 14. Assuming that Complainant had established that she had suffered an adverse employment action, the Agency found that she had failed to identify a similarly-situated employee who was treated more favorably; the Agency observed that that AA1 was not similarly situated because Complainant was rated as an AGC while AA1 was rated as an AA. Id.
Next, the Agency found that S1 had articulated legitimate, nondiscriminatory reasons for his actions, which Complainant had not shown was pretext for discrimination. Id. at 11-14. Regarding claim 1, S1 had stated that Complainant's reassignment was due to organizational efficiency and management reasons; CRFLO had too many practice groups with few staff members as a result of the reorganization and Complainant's three-person Cincinnati practice group performed work managed by other AGCs at Headquarters. Id. at 11. Regarding claim 2, S1 had stated that Complainant's rating was based on his experience as her current supervisor and on input provided by her previous supervisors; Complainant's current supervisors in CRFLO and her former supervisors in FOLO all would rate her as Fully Successful for the rating period; she had several performance issues; and her interactions with the Director of the Office of Civil Rights (OCR) and AA1 were an area of concern. Id. at 13-14.
CONTENTIONS ON APPEAL
On appeal, Complainant, through her attorney, asserts four errors in the Agency's final decision: (1) the Agency's ROI is not a complete, impartial, or appropriate record as required by 29 C.F.R. � 1614.108(b); (2) there are conflicts of interest associated with the Agency's processing of Complainant's formal complaint; (3) the Agency's finding of no discrimination in claim 1 is erroneous because her reassignment was not based on legitimate business considerations; and (4) the Agency's finding of no discrimination in claim 2 is erroneous because her Fully Successful rating was not based on legitimate business considerations. Complainant's Appeal Brief, at 1-2. Complainant requests that we reverse the Agency's final decision and find in her favor or, in the alternative, vacate the Agency's final decision and return the ROI to another agency for further development and investigation. Id. at 33.
Regarding the first asserted error, Complainant argues that the ROI lacks objective, useful, and sufficient comparative information. Id. at 5. In addition, Complainant argues that the ROI lacks material, relevant, and independent statements that would substantiate the events she articulated, such as testimony from key witnesses such as AA1, S2, her former supervisors in FOLO, or individuals present when she allegedly made inappropriate remarks to the Director of OCR. Id. 6-12. Further, Complainant argues that the ROI lacks evidence from OGC management about the different formal training opportunities, end-of-year bonuses, and typical career tracks for AGCs versus AAs. Id. at 11-12. Finally, Complainant argues that the Agency's final decision imposed an onerous burden on her to establish a prima facie case that is clearly inappropriate. Id. at 2-4. Regarding the second asserted error, Complainant argues that, given the parties involved, the acceptance and processing of her formal complaint, the investigation, the resulting ROI, and the Agency's final decision should have been handled outside of the Agency. Id. at 12-16. Regarding the third asserted error, Complainant argues that S1's explanations are pretext because he quickly processed the paperwork for her reassignment but took many months longer to do the same for the other reassignments. Id. at 16-20. In addition, Complainant argues that S1's statement that her February 2007 reassignment was a continuation of the official OGC reorganization is false because it would "defy imagination" that the individuals primarily responsible for the reorganization would suddenly ask him to restructure the Cincinnati practice group when the reorganization was finalized in August 2006. Id. at 21-23. Further, Complainant argues that the Agency, in completely rejecting her comparators, used an incorrect test that requires her job description and duties to be virtually identical to theirs. Id. at 24. Regarding the fourth asserted error, Complainant argues that S1's evaluation was pretext because he did not engage in a meaningful evaluation of her performance despite having access to an electronic "assignment tracker" that she maintained to reflect the activities of the practice group, and he did not contact individuals with knowledge of the bulk of her work during the rating period. Id. at 25-32.
In response, the Agency requests that we affirm its final decision because the ROI supports its finding of no discrimination, and contends that it conducted a thorough and impartial investigation of Complainant's claims. Agency's Appeal Brief, at 1, 17. The Agency repeats much of its analysis from the final decision regarding Complainant's failure to establish a prima facie case of discrimination and the Agency's legitimate, nondiscriminatory reasons for its actions. Id. at 5-11. In addition, the Agency addresses Complainant's assertions on appeal that her reassignment was not based on legitimate business reasons and that its explanation is pretext. Id. at 10, 12-13. In response to Complainant's assertion about its business reasons, the Agency argues that Complainant may not agree with them but that such matters are squarely within the scope of management's discretion. Id. at 10. In response to Complainant's assertion that the difference between S1's reorganization of the Cincinnati practice group and the July 2006 reorganization plan shows pretext, the Agency argues that S1 did not act unilaterally but instead had discussed with and received the approval of the management officials responsible for the OGC reorganization. Id. at 12-13. In response to Complainant's assertion that the slower processing time for the reassignment of the other AGCs shows pretext, the Agency argues that there is no evidence that S1 controlled how quickly Human Resources processed the reassignments or that S1 had any role in the delay at all. Id. at 13. Finally, the Agency addresses Complainant's assertions that the ROI is incomplete and that the investigation and final decision are tainted by a conflict of interest. Id. at 13-17. The Agency maintains that its ROI meets the requirements of 29 C.F.R. � 1614.108(b) and argues that Complainant, a GS-15 employment attorney, is precluded from claiming on appeal that the ROI is inadequate because she chose not to supplement the record by requesting a hearing and engaging in a formal discovery process after having an opportunity to review the ROI. Id. at 14-16. Regarding the alleged conflict of interest, the Agency argues that it adequately addressed the matter by removing S1 and other OGC attorneys from all matters involving the processing of Complainant's complaint, hiring an independent EEO investigator, and assigning the legal review of the final decision to an attorney outside of OGC. Id. at 16-17.
ANALYSIS AND FINDINGS
Standard of Review
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 Ch. 9, � VI.A. (Nov. 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").
Agency's Investigation of the Complaint, Report of Investigation, and Final Decision.
On appeal, Complainant argues that the Agency's ROI is not a complete, impartial, or appropriate record as required by 29 C.F.R. � 1614.108(b) and that there are conflicts of interest associated with the Agency's processing of her complaint. Complainant's Appeal Brief, at 1-2. Specifically, Complainant argues that the ROI lacks evidence important to her case including comparative information, key witness statements, and differences between the AGC and AA positions. Id. at 5-12. In addition, Complainant argues that, due to the head of the CRFLO being named the Responsible Management Official, the Agency should not have handled the processing of her complaint. Id. at 12-16.
29 C.F.R. � 1614.108(b) states, in relevant part, that the agency shall develop an impartial and appropriate factual record upon which to make findings on the claims raised by complainant and defines an appropriate factual record as one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred.
Initially, we note that while the Agency has an obligation under 29 C.F.R. � 1614.108(b) to develop an impartial and appropriate factual record, Complainant can also cure defects in an investigation, after reviewing the ROI, by requesting a hearing before an AJ. Complainant chose not to request a hearing. Our review of the record finds that the Agency's investigation is sufficient. In addition, we observe that Complainant did not raise any objections to the Agency's processing of her complaint at any time before her appeal. Further, the Agency stated on appeal that it took precautions to ensure the impartiality of the process by hiring an independent contractor to investigate the complaint, having a non-OGC attorney perform the legal review of the final decision prior to its issuance, and removing OGC attorneys from any managerial, oversight, or counseling duties in relation to the investigation, ROI, or final decision. Agency's Appeal Brief, at 13-17. Accordingly, we find that the Agency developed an impartial and appropriate factual record that allows us to draw conclusions as to whether discrimination occurred.
Disparate Treatment
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997); Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
Claim 1 - Reassignment
Assuming, arguendo, that Complainant has established a prima facie case of sex and age discrimination, we find that the Agency has articulated legitimate, nondiscriminatory reasons for its actions. Specifically, S1 attested that he eliminated the Cincinnati practice group and reassigned Complainant because, as the head of the new CRFLO, he thought that its organizational structure had too many AGCs and law practice groups for the number of staff members. ROI, Ex. F2, at 2-3. In addition, S1 attested that he thought Complainant's three-person Cincinnati practice group did not require an on-site AGC because it was small and it covered subject areas that were already managed by other AGCs in Washington, D.C. Id. Further, S1 attested that Complainant's reassignment was part of an attempt to "balance things out" within CRFLO in terms of the number of practice groups and AGCs; S1 attested that he announced the reassignment of two AGCs in the Civil Rights Law practice group in mid-August 2006 and the reassignment of the AGC in the RTP practice group around the time of Complainant's reassignment. Id.
Because the Agency has articulated legitimate, nondiscriminatory reasons for its actions, the burden shifts to Complainant to demonstrate by the preponderance of the evidence that the Agency's reasons are a pretext for discrimination. In an attempt to show pretext, Complainant asserts that, in contrast to the Agency's statements, her reassignment was not based on legitimate business considerations. Complainant's Appeal Brief, at 16-25. Complainant argues that her February 2007 reassignment was not part of the official OGC reorganization because the reorganization package, finalized in August 2006, retained the Cincinnati practice group and her AGC position. Complainant's Rebuttal, at 4-5. In addition, Complainant argues that it would seem unlikely that those in charge of the reorganization would ask S1, months after the reorganization was finalized, to restructure the Cincinnati practice group. Complainant's Appeal Brief, at 21-23. Further, Complainant asserts that the speed at which the Agency processed her reassignment, compared to its processing of the other reassignments, is evidence of pretext.
In this case, we find that Complainant has failed to prove, by a preponderance of the evidence, that the Agency's actions were based on discriminatory intent. The record indicates that the Agency articulated organizational efficiency reasons for Complainant's reassignment. ROI, Ex. F2, at 2-3. Although Complainant disagrees with the Agency's justification, asserting that there is "no legitimate business reason to substantiate" her reassignment and that her reassignment "did not make logical sense," we find that Complainant cannot substitute her judgment for that of the Agency, which stated business reasons for her reassignment and also reassigned other AGCs to AAs. Complainant's Aff., at 4; Complainant's Appeal Brief, at 23; ROI, Ex. F2, at 2-3. In addition, we find that Complainant's assertion that her reassignment was not part of the reorganization is based on speculation; despite her arguments otherwise, we do not find that it would "defy imagination" for the Agency to decide, less than six months after it finalized the reorganization package, that it needed to make additional changes. Ultimately the agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Burdine, 450 U.S. at 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). Accordingly, we find that Complainant has failed to show that her reassignment was motivated by sex or age.
Claim 2 - Performance Rating
Assuming, arguendo, that Complainant has established a prima facie case of sex and age discrimination, we find that the Agency has articulated legitimate nondiscriminatory reasons for its actions. Specifically, S1 attested that Complainant's Fully Successful rating was based on a combination of his and S2's observations of her performance over the last four months of the rating period and input from her supervisors in FOLO for the first eight months of the rating period.8 ROI, Ex. F2, at 5. In addition, S1 attested that the fact that Complainant's three supervisors in FOLO all told him that Fully Successful would be her appropriate rating was a "major factor" in determining her rating because her time in FOLO accounted for two-thirds of her evaluation. Id. Further, S1 attested that he and S2 told Complainant the following during the January 31, 2007 meeting: (1) her written and oral communications were typically much too long and convoluted, which caused the key points to be lost or difficult to identify; and (2) she seemed to take disagreements over substantive issues personally and too quickly got defensive and argumentative, which reduced her effectiveness as a legal advisor. Id. at 6. Finally, S1 attested to two additional areas of concern: an inappropriate comment allegedly made by Complainant in the presence of the Director of OCR9 and Complainant's micromanagement of AA1. Id. at 6-7.
Because the Agency has articulated legitimate, nondiscriminatory reasons for its actions, the burden shifts to Complainant to demonstrate by the preponderance of the evidence that the Agency's reasons are a pretext for discrimination. In an attempt to show pretext, Complainant asserts that S1 did not conduct a meaningful or fair appraisal of her performance for the rating period and gave a number of reasons why she should have received an Exceeds Expectations rating. Complainant's Aff., at 7; Complainant's Rebuttal, at 13. In addition, Complainant asserts that S1 did not consult with all her supervisors in FOLO or clients that were familiar with her work, and never raised any alleged issues with her performance during the January 31, 2007, meeting as either the justification or basis for her rating. Complainant's Aff., at 5; Complainant's Rebuttal, at 13; Complainant's Appeal Brief, at 28-29. Further, Complainant denies making the comment about the Director of OCR or micromanaging AA1. Complainant's Rebuttal, at 10-13. Finally, Complainant asserts that she "couldn't understand" how she only received a Fully Successful rating when AA1, whose work she had assigned, assisted, reviewed, and revised as an AGC, had received an Exceeds Expectations rating. Complainant's Aff., at 7.
In this case, we find that Complainant has failed to prove, by a preponderance of the evidence, that the Agency's actions were based on discriminatory intent. We note that there is contradictory testimony by Complainant and S1 regarding which individuals were consulted about her evaluation, what was discussed at the January 31, 2007 meeting regarding her performance, whether she made the alleged comments about the Director of OCR, and whether she micromanaged AA1. Complainant's Aff., at 4-7; Complainant's Rebuttal, at 8-13; ROI, Ex. F2, at 5-7. This is precisely the type of conflict that could have been resolved by an AJ's credibility determination had Complainant requested a hearing. In addition, we are not persuaded by Complainant's argument that she should have received the same rating as AA1; we note that AA1 was rated on his performance as a GS-14/GS-15 AA, while Complainant was rated on her performance as a GS-15 AGC. Complainant's Aff., at 2; ROI, at Ex. F6. Accordingly, we find that Complainant has failed to show that her Fully Successful rating was motivated by sex or age.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the agency's final decision.
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 (Nov. 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 (S0610)
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. 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 19, 2010
Date
1 The AGC position is referred to interchangeably in the record as Practice Group Leader, Attorney-Adviser (Assistant), and Attorney-Adviser (Leader). Complainant's Aff., at 1; ROI, at Ex. F4, F9, F12.
2 The record is unclear as to the ages of the five other CRFLO individuals reassigned between 2006 and 2008 from AGCs to AAs or from AAs to AGCs. ROI, at Ex. F5, F13. A reassignment chart shows that the Agency reassigned three people (one female, two male) other than Complainant from AGCs to AAs and reassigned two people (one female, one male) from AAs to AGCs. ROI, at Ex. F5. A January 14, 2008, e-mail from S1 to the EEO investigator lists the sex and date of birth of the reassigned individuals, but does not indicate which information corresponded to which specific reassignment. ROI, at Ex. F13. Of the two other reassigned females, one was over 40 years of age and one was under 40 years of age. Id. Of the three reassigned males, two were over 40 years of age and one was under 40 years of age. Id.
3 Their reassignments were still pending as of January 3, 2008. ROI, at Ex. F5.
4 The five practice groups were Assistance Law, Procurement Law; Claims, Property, and Appropriations Law; Research Triangle Park (RTP); and Cincinnati. ROI, at 189.
5 AA1 was initially a GS-14, but was promoted to a GS-15 around the time of the OGC reorganization. Complainant's Aff., at 2.
6 The RTP practice group AGC's reassignment was effective May 13, 2007. ROI, at Ex. F5.
7 The form indicates that written highlights by the supervisor are required to support an element rated Outstanding, Minimally Satisfactory, or Unsatisfactory. ROI, at Ex. F6.
8 S1 did not become the Associate General Counsel for CRFLO, and therefore Complainant's supervisor, until the reorganization was announced on August 25, 2006. ROI, Ex. F2, at 5.
9 S1 attested that the Director of OCR informed him of a comment she overheard Complainant make during the Director's presentation at an Agency conference. ROI, Ex. F2, at 6. S1 attested that the Director told him she heard Complainant say, "This is boring. Why do we have to sit and listen to this?" Id.
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0120090440
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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