0120112138
03-08-2013
Pamela J. Duray, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.
Pamela J. Duray,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Appeal No. 0120112138
Hearing No. 443-2010-00044X
Agency No. HS-09-CBP-004271-050602
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's February 17, 2011 final order concerning an equal employment opportunity (EEO) complaint claiming 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Human Resources Assistant, GS-203-7, at the Agency's Office of Human Resources Management, Minneapolis Hiring Center (MHC) in Fort Snelling, Minnesota.
On March 18, 2009, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful.
On May 27, 2009, Complainant filed the instant formal complaint. Therein, Complainant claimed that she was subjected to harassment and a hostile work environment on the bases of sex (female), disability (urticaria, bilateral chronic ear disease, rhinitis and anaphylactic immune systems disease), age (over 40), and in reprisal for prior EEO activity when:
1. since 2006, her requests for reasonable accommodations (telephone headset/earpiece, transfer to another cubicle, reassignment) were not granted;
2. in March/April 2007, information regarding her medical condition was disclosed;
3. beginning in February 2008 and continuing to February 1, 2009, a Team Leader yelled at her and used foul language;
4. from October 2008 through March 2009, she was assigned lower level work including excessive phone work;
5. in November 2008 and February 2009, she was denied training opportunities;
6. from January 2009 through March 2009, she was excluded from the Customer Service Unit (CSU) staff meetings; and
7. in February 2009, she learned she was not selected for the positions of Human Resources Specialist, GS-201-5/12, separately advertised under Vacancy Announcement Numbers (VAN) 239536, 230941 and 241628, or the position of Human Resources Assistant, GS-203-4/7, advertised under VAN 202596.
After the investigation, Complainant was provided a copy of the investigative file and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency issued a Motion for a Decision on the Record. On August 11, 2010, the AJ granted in part and denied in part the Agency's motion.
AJ's Dismissal of Some Claims as Untimely Raised
Specifically, the AJ dismissed a portion of claim 1 concerning the denial of Complainant's reasonable accommodation requests for a transfer to another cubicle and reassignment, claims 2 - 3, a portion of claim 5 (November 2008 training denial), and a portion of claim 7 concerning the non-selections for the positions of HR Specialist advertised under VAN 239536 and 241628 and the position of HR Assistant advertised under VAN 202596 on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2). The AJ determined that these alleged discriminatory events occurred between April 2007 and February 1, 2009, but that Complainant did not initiate EEO Counselor contact until March 18, 2009, which the AJ found to be beyond the 45-day limitation period.
Despite the procedural dismissal of a portion of claim 1, claims 2 - 3, a portion of 5, and a portion of claim 7 for untimely EEO Counselor contact, the AJ nevertheless proceeded to address them on the merits by summary judgment based on the evidence developed during the investigation.
With respect to portion of claim 1 concerning the denial of Complainant's reasonable accommodation request to be transferred to another cubicle, the AJ noted that on October 12, 2007, Complainant told the former supervisor that she wanted to be transferred away from all printers and copiers. Complainant believed her work location may have poor air quality or volatile chemicals. The AJ noted that a printer was moved way from Complainant's work area.
The AJ noted that on December 27, 2007, Complainant requested to change her cubicle because of poor lighting and she was unable to see her work. Complainant also requested a larger monitor. The AJ noted that on April 23, 2009, the lights in Complainant's cubicle were upgraded and she was provided a larger monitor. On April 27, 2009, Complainant thanked the Branch Chief for the larger monitor.
The AJ noted that when Complainant again requested a change in cubicle, the Branch Chief told her that she could not change her cubicle because she moved to the current cubicle on March 13, 2009, and out of the total 224 hours she was on leave for 119 hours. The AJ noted that the Complainant's co-workers did not complaint about the air quality. The AJ noted that in response to Complainant's concerns, the General Services Administration studied the environment and concluded the air quality was acceptable.
Further, the AJ noted that the Branch Chief told Complainant that she must submit medical documentation explaining why transferring to another cubicle was necessary. The AJ noted that Complainant previously provided medical documentation stating that she should not be exposed to chemicals and that something in her environment was making her ill. The AJ noted, however, Complainant never provided medical documentation explaining her need to change cubicles. Moreover, the AJ noted that in July 2009, Complainant was transferred to another team due to workload demands and consequently moved to a new cubicle.
With respect to portion of claim 1 concerning the denial of Complainant's reasonable accommodation request to be reassigned, the AJ noted that in February 2008 and August 2008, Complainant asked the former supervisor to reassign her because her co-workers did not like her. Complainant was not reassigned because no vacancies existed that matched her qualifications.
The AJ noted that in September 2008, Complainant requested reassignment to her former unit because she was not performing the duties for which she was trained. Complainant was not reassigned.
Regarding claim 2, the AJ noted that on March 27, 2007, a named employee sent an email to all MHC management about Complainant's medical condition because she was hospitalized. Complainant's former supervisor forwarded the email from the named employee to all employees in Complainant's unit. The AJ noted that on April 2, 2007, Complainant returned to work, and learned the email was sent to her coworkers.
Regarding claim 3, the AJ noted that Complainant alleged that on February 1, 2008, while the Team Leader was showing her how to do a report, he banged his pen on his disk and used a tone of voice indicating that he was upset. The AJ noted in her deposition, Complainant could not recall what he said or what the incident was about. Complainant further alleged that on February 13, 2008, as the Team Leader walked down the aisle he was upset and used a very loud voice. Specifically, Complainant alleged that the Team Leader used the words "damn" and "shit."
The AJ noted after Complainant asked the Branch Chief for a reassignment, the Branch Chief was unable to reassign her but spoke with the Team Leader about his behavior. The AJ noted that Complainant acknowledged that after the counseling, things "seemed better." Furthermore, the AJ noted that the Branch Chief did not receive any additional complaints from Complainant about the Team Leader's behavior.
Complainant also alleged that on October 14, 2008, the Team Leader asked her if "a Border Patrol call wasn't burn-out work" and one week later he yelled at her for asking for help with a reasonable accommodation request. The AJ noted that the Team Leader told Complainant she needed to get a letter from her doctor for her request. The AJ further noted that the record reflects that in January 2009, the Team Leader used foul language while working in an adjacent cubicle. Moreover, the AJ determined that the alleged discriminatory events were insufficiently severe or pervasive so as to create a hostile work environment.
Regarding claim 5, the AJ noted that in November 2008, Complainant requested to attend Delegated Examining Unit (DEU) certification training. Employees obtain DEU certification to perform delegated examining work which is performing in the Recruiting and Exams Unit (REX). The AJ noted that Complainant did not work in that unit in November 2008, and therefore was not required to do any delegated examining work when she requested training. Complainant's request for training was denied.
Further, the AJ noted that in February 2009, Complainant's request to attend qualification training was granted. Complainant attended the training one month after her original request date of February 3, 2009, because training had to occur during overtime and because Complainant was on annual leave the day before the training, she was ineligible to use overtime that week.
Regarding claim 7, the AJ noted that in early 2009, the Agency advertised HR Specialist positions at the MHC under VANs 239536, 230941, and 241628. Complainant applied for all three positions. The AJ noted that on February 19, 2009, a named HR Specialist cancelled VAN 239536 before any certificates of eligibles were issued. The AJ noted that the named HR Specialist was instructed to cancel the subject VAN because the MHC had met its staffing ceiling and did not need to recruit any more HR Specialists.
With respect to HR Specialist position advertised under VAN 241628, the AJ noted that in August 2008, Complainant applied for the HR Assistant position. The AJ noted that Complainant was on the GS-7 certificate of eligibles for VAN 202596. The AJ noted, however, Complainant was eliminated from consideration because she was already employed as a GS-7 HR Assistant at the MHC as a career employee. The AJ noted that because Complainant was eliminated from consideration, the recommending officials did not interview her or recommend her for selection. Therefore, the selecting official did not consider Complainant for selection.
AJ's Decision on Merits Following Hearing on Claims Not Dismissed
The AJ, however, denied the Agency's motion concerning the following claims: a portion of claim 1 concerning the denial of Complainant's reasonable accommodation request for a telephone headset/earpiece, claims 4 and 6, and a portion of claim 7 concerning the non-selection for the position of Human Resources (HR) Specialist advertised under VAN 230941. A hearing was held on these claims on September 13, 2010.
Following the hearing, on November 3, 2010, the AJ issued a decision finding that the Agency had unlawfully denied Complainant her right to reasonable accommodation for her disability when she was not provided with a cordless telephone headset/earpiece. In making this finding, that AJ found that in 1984, Complainant was diagnosed with chronic ear disease. As a result of an ear infection and surgery on both ears, Complainant is missing the left ear cancel, incus bone and part of her lower skull. Complainant has a permanent mild moderate severe hearing loss in her left ear and a mild hearing loss in her right ear.
The AJ further noted that in May 2006, Complainant informed her supervisor in writing that she was hearing impaired. During 2006, Complainant made verbal requests for a cordless telephone earpiece to her supervisor, former supervisor and Team Leader. Specifically, Complainant informed her supervisor that a cordless earpiece would help her with her telephone duties due to her chronic ear disease. The AJ noted that the supervisor never asked for medical documentation.
The AJ noted that after no response was made from the Agency in 2007, Complainant submitted a written request to her Team Leader and former supervisor for a cordless headset due to her multiple ear surgeries. Specifically, Complainant wanted a cordless headset like a named HR Specialist used. The AJ noted that when the named HR Specialist no longer used the cordless headset, the Agency gave it to another employee who required constant access to the telephone. The AJ noted that this employee received the named HR Specialist's former headset to use as a spare or extra headset. The AJ further noted that the Agency did not give the extra cordless headset to Complainant because the Agency found that it was too expensive, and that it wanted an unused spare headset so it would not have to replace the cordless headset if it broke.
The AJ noted in October 2007, Complainant's former supervisor denied her request for a cordless earpiece that hangs around her ear because it was too expensive. The cost of the earpiece would have been cost prohibitive at $350 or more. Between 2006 and March 2009, Complainant tried using several alternative headsets which were less expensive and hopefully designed to meet her needs. None of the headsets provided were the cordless earpiece that hangs around the ear that Complainant needed.
The AJ noted that in March 2009, the former supervisor gave Complainant a one-eared corded headset with a headband. Complainant returned the headset and requested her old headset back because it placed additional pressure on the surgery site. Complainant told the former supervisor that she asked her supervisor for a special order to fit her post-operative needs due to her chronic ear problem, and that the headset rests where she is missing the incus bone and causes pain. Complainant showed the former supervisor an Employment Needs Assessment in her official personnel file that she submitted when she was hired in 1996. The AJ noted in the number 6 "Reasonable Accommodation" category of the statement, it stated that Complainant "needs to avoid loud noises and work areas and to also avoid wearing a headset." This was the first time the former supervisor became aware that Complainant could not wear a headset. Complainant thought the former supervisor understood that any device could not put pressure on her ears or on her head around her ears.
The AJ noted although the former supervisor was no longer Complainant's supervisor after October 1, 2008, his branch procured employee devices and he attempted to meet Complainant's needs for a headset. The AJ noted that after an employee provides a doctor's recommendation providing that the device is needed to perform the job duties, the Agency considers the cost. If the Agency lacks finances, it will not provide a device even with a doctor's recommendation. An employee must provide a medical need for a headset or have a mission-driven reason. The AJ further noted that no Agency official asked Complainant to submit medical documentation or told her what was necessary to receive the earpiece. Moreover, the AJ noted that the Agency never provided Complainant with a cordless earpiece.
During his testimony, Complainant's supervisor was asked when the HR Specialist no longer used her cordless earpiece, why it couldn't have been given to Complainant, he stated "yes, the reason being is that it's a very expensive piece of equipment. If the other person that had to have that equipment, if her equipment broke down, we would have to replace it. And that was the purpose of that device - - was to serve as a replacement for a piece that had to be used to take care of government business."
Based on this evidence, the AJ concluded that the Agency failed to provide Complainant with an effective reasonable accommodation for her disability. In order to remedy Complainant for its unlawful conduct, the AJ ordered the Agency to provide Complainant with the cordless headset/earpiece, provide disability training to the responsible management officials, post a notice concerning the finding, and provide Complainant with reasonable attorney's fees and costs.
The AJ went on to find no discrimination had been proven on the bases of sex, disability, age and prior protected activity concerning claims 4, 6 and portion of claim 7 concerning the non-selection for the position of HR Specialist advertised under VAN 230941. In addition, the AJ found that the evidence of record did not establish that Complainant was subjected to harassment based on race, national origin and disability or that the alleged harassment was sufficiently severe or pervasive so as to create a hostile work environment.
Regarding claim 4, the AJ noted that MHC is a nationwide hiring center, and most of its work is done over the telephone or by email. The AJ further noted that from 2007 to the end of the fiscal year of 2009, the Agency was involved in massive hiring for border patrol agents. During this time, Complainant generally communicated with the applicants through telephone and email. The record reflects that between February 2008 and February 2009, Complainant was assigned eight hours of telephone duty or was checking mail and answering the phone.
The AJ noted that in October 2008, Complainant submitted a request as reasonable accommodation that her telephone duties be limited. Specifically, Complainant alleged that her medical condition was chronic ear disease and allergic reactions that affect her ears. The AJ noted that after the EEO Manager requested Complainant to submit medical documentation, the EEO Manager accommodated Complainant's chronic ear disease by splitting her duties between answering the telephone for four hours and mail duties. Therefore, the AJ concluded that Complainant's accommodation request was, in fact, granted.
Regarding claim 6, the AJ noted that Complainant alleged she was excluded from CSU from July 2007 to March 2009. The AJ noted during his testimony, the Team Leader stated that he did not hold formal or weekly staff meetings. The Team Leader stated that he spoke with staff individually or together, depending on who was working on a certain project. Specifically, the Team Leader stated "I didn't have a lot of formal meetings. I'm not big one on that."
With regard the portion of claim 7 concerning the selection under VAN 230941, the AJ noted that Complainant made the GS-9 merit promotion certificate. However, the Supervisory HR Specialist recommended a named HR Assistant from the GS-9 certificate, and the Acting Director selected the named HR Assistant based on the Supervisory HR Specialist's recommendation. The AJ noted that during her testimony, the Supervisory HR Specialist stated that she recommended the named HR Assistant for the subject position because she worked with her from January 2007 to the time of her promotion and was familiar with her work. The Supervisory HR Specialist stated the selectee previously worked for her as an HR Assistant. The Supervisory HR Specialist stated that the selectee "is very detail-oriented in the fact that she can accomplish things quickly and correctly. She volunteers for assignments, completes them efficiently and correctly. She is very - - well, at organization skills in those areas. She has wonderful customer service."
The Supervisory HR Specialist stated that she was familiar with Complainant's performance because she was her Team Leader from January 2006 to July 2007. The Supervisory HR Specialist stated that Complainant "had difficulty managing her time. She had excessive focus to detail, where it consumed her. She did now follow directions. She had a problem managing her time, she talked excessively. She confused merit promotion with veterans preference, and she made a critical error in an announcement where 50 applicants, 50 plus applicants had to receive priority consideration."
AJ's Decision on Attorney's Fees
The record reflects that on January 18, 2011, the AJ issued a decision on attorney's fees. In his fee petition, Complainant's attorney requested $41,534.70 ($31,850.00 for 91.0 hours of attorney time at the rate of $350.00 per hour for attorney, $8,844.50 for 24.50 hours of attorney time at the rate of $361.00 per hour for attorney, and $840.20 in legal costs). The fees encompassed work performed by Complainant's attorney and former attorney. The AJ examined the fee petition of Complainant's attorneys, with all supporting documentation, as well as the Agency's objections. The AJ determined that Complainant's attorneys had requested payment at a reasonable hourly rate.
The Agency had argued that Complainant prevailed on only one of her 11 claims and that claim is fractionable. Therefore, the total hours billed should be reduced to reflect the time spent on the non-prevailing issues. The record reflects that the AJ determined that Complainant made strong arguments for a smaller reduction in attorney's fees than claimed by the Agency. The AJ noted that 6 of the 7 witnesses testified at the hearing about Complainant's hearing disabilities and/or the earpiece.
In addition, the AJ noted that Complainant's memorandum opposing the Agency's motion to dismiss devoted over 37% of the brief to arguing Complainant was a qualified disabled person, the Agency was aware of her disability and the Agency failed to accommodate her. The AJ found that 38% pages of the testimony reflected testimony about the earpiece, ears, hearing, tintinitus, and reasonable accommodation. The AJ concurred with Complainant's argument that 37% of her attorney's time was related to her efforts to obtain accommodation of a cordless earpiece. Therefore, the AJ determined that the hours requested should be reduced by 63%. As a result, the AJ awarded Complainant's attorney and former attorney in the amount of $15,889.83 ($11,777.17 to Complainant's attorney plus $840.20 in legal costs) and $3,272.46 to Complainant's former attorney).
By final order dated February 17, 2011, the Agency fully implemented the AJ's decision, including the finding of discrimination concerning the failure to provide the cordless headset/earpiece and the provision of remedies, including the attorney's fees award.
The instant appeal followed in which Complainant submitted a brief, without the assistance of an attorney, requested that the Commission give a full review to those portions of the AJ's decision where no finding of discrimination was made.
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 a discriminatory intent existed is a factual finding. See Pullman-Standard v. Swint, 456 U.S. 273, 293 (1982).
In this case, a hearing was held on a portion of claim 1, claim 4, claim 6 and a portion of claim 7. Upon review of the record, we conclude that substantial evidence of record supports the AJ's determination that Complainant proved that the Agency's unlawfully failed to reasonably accommodate her disability by providing her with a cordless headset/earpiece. We affirm the finding of liability in this claim, as well as the remedies ordered by the AJ, including the award of attorney's fees. We also find that substantial evidence supports the AJ's determination that Complainant failed to prove discrimination with regard to claim 4 and 6, and the portion of claim 7 concerning the non-selection for the position of HR Specialist under VAN 230941. 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, at � VI.B. (November 9, 1999).
We also affirm the AJ's determination that some of the claims (portions of claim 1, claims 2 - 3, a portion of claim 5, and a portion of claim 7 concerning the non-selections for the positions of HR Specialist advertised under VAN 239536 and 241628 and the position of HR Assistant advertised under VAN 202596) should be procedurally dismissed for untimely EEO counselor contact. EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. These were discrete events that occurred more than 45 days before Complainant initiated EEO counseling.
Moreover, we note that the AJ went on to address the dismissed claims (as well as the portion of claim 5 that was timely raised) on their merits by summary judgment based on the evidence gathered during the investigation. First, we find that complainant has not adequately identified genuine issues of material fact in this case which can only be resolved through a hearing. As such, we find no basis for concluding that the AJ erred in deciding this case by summary judgment. Assuming arguendo that complainant established a prima facie case of discrimination, we agree with the AJ that the agency met its burden to present legitimate, non-discriminatory reasons for its actions. We find that the agency's explanation was sufficiently clear and specific to afford complainant the opportunity to prove pretext. Upon review of the record, we also agree with the AJ that complainant fails to prove pretext. In reaching this conclusion, we find no objective or persuasive evidence from which a reasonable fact finder could conclude that management's explanations were unworthy of belief.
Accordingly, we AFFIRM the AJ's finding of discrimination of portion of claim 1 concerning the denial of Complainant's reasonable accommodation request for a cordless headset/earpiece and the AJ's finding of no discrimination concerning portions of claim 1 and claims 2 - 7. We REMAND the matter relating to relief concerning the reasonable accommodation of an earpiece, training for management officials, attorney's fees and costs, and the posting of the notice as ordered by the AJ, to the Agency to take remedial action, if still necessary, in accordance with this decision and the ORDER below.1
Finally, we note that Complainant, on appeal, raises new claims that she was subjected to ongoing retaliation when the Agency denied her requests for reasonable accommodation and issued her an Employee Performance Plan. These new claims were not previously raised by Complainant and it is inappropriate for Complainant to raise them for the first time on appeal. Complainant is advised that if she wishes to pursue any additional claims for the first time on appeal, she should initiate contact with an EEO Counselor.
ORDER
The Agency, to the extent that it has not already done so, is ordered to take the following action:
1. Within thirty (30) calendar days of the date this decision becomes final, the Agency shall accommodate Complainant with a cordless headset/earpiece.
2. Within sixty (60) calendar days of the date this decision becomes final, the Agency shall provide EEO disability training to management officials at the MHC. The training shall be mandatory and conducted by a qualified trainer familiar with EEO regulations.
3. Within sixty (60) calendar days of the date this decision becomes final, the Agency shall tender to Complainant's attorney and co-counsel in the amount of $15,889.83 ($11,777.17 to Complainant's attorney plus $840.20 in legal costs, and $3,272.46 to co-counsel).
4. Within sixty (60) calendar days of the date this decision becomes final, the Agency shall post a notice at MHC 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 evidence that corrective action has been implemented.
POSTING ORDER (G0900)
The Agency is ordered to post at its MHC in Fort Snelling, Minnesota, 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 (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, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0610)
This decision affirms the Agency's final 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 (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
March 8, 2013
__________________
Date
1 On appeal, Complainant does not challenge the June 26, 2009 partial dismissal issued by the Agency regarding another claim (that she was subjected to harassment and a hostile work environment on the bases of sex, disability, age, and in reprisal for prior EEO activity when she was not selected for positions due to her veterans' preference). Therefore, we have not addressed this issue in our decision.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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