0120083575
12-10-2009
Regina Murry, Complainant, v. Paul Prouty, Acting Administrator, General Services Administration, Agency.
Regina Murry,
Complainant,
v.
Paul Prouty,
Acting Administrator,
General Services Administration,
Agency.
Appeal No. 0120083575
Hearing No. 310-2004-00304X
Agency No. 22-R7-STF-RKM-C0I-01
DECISION
Complainant filed an appeal from the agency's July 16, 2008 final
action concerning her equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. and Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.
BACKGROUND
Complainant started working at the agency in December 1989. Throughout
her employment, complainant had been reassigned to a number of
positions at the agency, many of which occurred at her personal request.
Complainant worked in the agency's Human Resources and Program Support
Division (HRPS) which had two main organizations: (1) Human Resources
consisting of Classification and Staffing, Labor Relations, Employee
Relations and Training; and (2) Program Support consisting of the
National Forms Center, Administrative Services, Business Service Center
and Regional Acquisitions. In May 1999, after it was determined that
there was a lack of work for complainant in her job at the time, she
was assigned to the National Forms Center, Program Support in the HRPS
division as a GS-5 Supply Technician.
Complainant protested the assignment to the National Forms Center,
a warehouse facility, and requested sick leave. Complainant's sick
leave was approved and she did not report to the National Forms Center
in May 1999. In May 1999, complainant applied for the agency's
voluntary leave transfer program and her application was approved.
Complainant's application contained a certification from Doctor A stating
that since February 1, 1999, she has suffered from panic disorder without
agoraphobia,1 adjustment disorder unspecified, and occupational problems.
The application also noted that complainant had a negative sick leave
balance of 231.7 hours and had used 240 hours of advanced sick leave.
On May 13, 1999, complainant sent an electronic mail message to the
Director of Human Resources and Program Support, her third level
supervisor, inquiring into a vacant GS-06 Business Assistant position
which was apparently open at the time. Complainant stated that she was
qualified for this assignment. The Director responded that he could
not provide the position as a reassignment because it would amount to
a promotion, which he stated would be illegal.
On June 14, 1999, the agency issued a memorandum entitled "Excessive
absenteeism/Request for Medical Documentation" signed by S1, complainant's
supervisor at the National Forms Center. The memorandum noted that
between January 1999 and June 6, 1999, complainant had taken 245 hours
of annual leave and 357 hours of advanced sick leave. The document
also stated complainant received 48 hours of donated leave and 98
hours of Leave Without Pay (for a total of 748 hours). The memorandum
noted complainant had been unavailable for duty, but acknowledged
that the circumstances were "seemingly" out of complainant's control.
The memorandum stated complainant was to report to work on June 25, 1999.
The memorandum referenced a letter from complainant's doctor describing
complainant's "total incapacitation." The letter stated that based on
the limited medical information from complainant's doctor on May 29,
1999, complainant should provide a more detailed report of her condition
addressing: (1) the nature and extend of the medical condition and how it
impacts performance of the duties of the position; (2) an estimated date
of full or partial recovery with any physical limitations, restrictions
or recommended accommodations; and (3) an explanation for the medical
basis for any conclusions and prospect for suffering sudden or subtle
incapacitation while performing her duties.
In a June 24, 1999 letter, Doctor A released complainant to return to
work on a modified schedule of five hours per day for the next thirty
days and stated she would be reevaluated after 30 days to determine if
she can progress to working eight hours per day. Thereafter complainant
reported to the National Forms Center in July 1999.
In an October 14, 1999 letter, Doctor A explained that complainant
has been seen in the office since February 1, 1999, for "supportive"
individual medical-cognitive psychotherapy. Doctor A stated that
complainant's "healing process has been impeded by the unjust prolonging
of her 'hearing.'" The doctor opined that complainant will require two
to three years of psychoanalytical therapy twice weekly.
In a November 26, 1999 letter, Doctor A stated that complainant "requires
medication to manage anxiety, insomnia, and depression." The doctor
noted complainant's "therapeutic plan continues to be seriously impeded
by continuous unhealthy work-related situations." The doctor stated
"working in a hostile and hazardous environment" makes work performance
difficult and places complainant at risk for Post Traumatic Stress
Disorder. Doctor A reiterated the "medical recommendations" made in
her October 14, 1999 letter.
In a May 9, 2000 letter Doctor A requested complainant be granted
a reasonable accommodation in the form of leave under the Family
Medical Leave Act (FMLA) for aggravation of a preexisting condition.
Doctor A attached Form WH-380, Certification of Health Care Provider,
which stated complainant has a serious health condition. The form did
not respond to any of the questions listed on the form and simply stated
"see attached."2
The agency responded to Doctor A's May 9, 2000 request on May 15,
2000, and approved FMLA leave for complainant from May 1 to May 31,
2000, to cover absences for medical reasons. The agency stated when
it is determined complainant can return to work, she may request and be
considered for jobs for which she is qualified.
Doctor A released complainant to return to work effective June 5, 2000.
Doctor A requested complainant be returned to an environment which is
"safe" and "will enhance the complainant's overall performance."
On June 7, 2000, the agency responded to the June 2, 2000 letter
from Doctor A releasing complainant to work effective June 5, 2000.
The agency noted that Doctor A requested complainant be provided a work
environment that is safe and that will enhance her overall performance.
The agency stated that to allow complainant to ease back into the work
environment, she has been temporarily assigned to the office of S2, her
second level supervisor, through June 16, 2000. The agency noted the
"temporary assignment is only supported by a few limited work projects
and cannot be justified on a continuing basis." The letter stated that
at the end of the assignment complainant would be expected to report to
her permanent work center at the National Forms Center on June 19, 2000.
The letter noted that once she returns to the National Forms Center she
should advise the agency of any concerns that her work environment is
not safe.
The record contains an "Emergency After Care Instruction Sheet" dated
July 28, 2000, signed by Doctor B of the John Peter Smith Hospital which:
(1) lists instructions for complainant's medication; (2) notes a follow
up appointment; and (3) recommends complainant not return to her "current
work environment." The form also contained a post-it note attached to
the Instruction Sheet recommending that complainant "not return to current
work environment (warehouse depot)." The record contains a "Physician's
Statement" certifying that complainant was treated at John Peter Smith
Hospital from July 28, 2000, through July 31, 2000. The statement also
excuses complainant from work from July 27, 2000, through July 31, 2000,
and states patient "is not to return to warehouse depot as work area is
not suitable for her continued mental and physical well being."
The record contains an August 29, 2000 letter from Doctor C. Doctor C
requested complainant be excused from work from August 29 through
September 1, 2000.
Doctor C wrote an April 18, 2001 letter explaining that complainant
suffers from generalized anxiety disorder with panic agoraphobia and
slight depressive features. The doctor noted complainant's symptoms "have
been better controlled with a preventative medication called Effexor"
which complainant takes on a daily basis. The doctor noted complainant
also takes Clonazepam as needed which "will calm her mood within an hour
and will continue to calm her mood for the next eight to twelve hours."
The doctor noted that he reviewed her position description and critical
elements and stated that she "is reasonably able to perform her duties as
long as her panic disorder is not provoked." With regard to her request
for reasonable accommodation, the doctor stated that "[w]hatever allows
her to be free from conflict or things that will provoke her anxiety
disorder and panic attacks will allow her to be more effective in her
work."
The record reveals complainant suffered several panic attacks at work
which resulted in a call for an ambulance and assistance by paramedics at
the work site and later treatment at the hospital. During the relevant
time, complainant made several requests for reassignment out of the
National Forms Center due to the riveting noise from printers in her
work area and the presence of rats in the work area. Complainant also
requested to change her work hours stating that she could not arrive to
work at 7:00 a.m. since she was still under the influence of medications
taken to reliever her insomnia. Additionally, complainant requested
to work from home at least part of the day to help with her difficulty
getting to work.
On May 21, 2002, complainant filed an EEO complaint alleging that
she was discriminated against on the bases of race, color, national
origin, disability, and in reprisal for prior protected EEO activity.
The agency defined complainant's complaint as alleging that she was
denied reassignment as a reasonable accommodation in approximately May
1999 and March 2000.
On July 8, 2002, the agency dismissed complainant's complaint on the
grounds that it stated the same claim already pending before the agency.
Complainant filed an appeal challenging the dismissal of her complaint.
In EEOC Appeal No. 01A24978 (November 3, 2003), the Commission found
complainant did not raise the same claim as was already pending before
the agency. Accordingly, the Commission vacated the agency's final
action and remanded the complaint for further processing.
At the conclusion of the investigation on the remanded complaint,
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 timely requested a hearing and the AJ held a
hearing on September 5 - 6, 2007. The AJ issued a decision on May 29,
2008.
In his decision, the AJ listed the issue to be decided as: on January 30,
2002, while reviewing a previous EEO complaint, complainant became aware
that there were positions available during the period of May 1999, through
November 2000 (and continuing), to which she could have been reassigned
that would have honored her request for reasonable accommodation of her
disability. The AJ noted complainant also alleged that the failure to
offer her these reassignments was motivated by discrimination because
of her race, disability, and in reprisal for prior participation in the
EEO process.
The AJ found complainant established a prima facie case of discrimination
based upon her race and in reprisal for her participation in prior
EEO activity. With regard to her claim of disability discrimination,
the AJ recognized that complainant suffers from debilitating migraine
headaches, anxiety/panic attacks and a sleep disorder, which even with
medications as mitigating measures, results in frequent trips to the
emergency room and taking many days for full recovery. The AJ noted
complainant states that she cannot sleep, which makes it difficult
for her to come to work and suffers from agoraphobia which prevents
her from coming out in public, precluding complainant from performing
many of the responsibilities which constitute "major life activities."
The AJ found complainant was a qualified individual with a disability.
The AJ noted that complainant made several requests to be moved into a
position outside the National Forms Center. The agency maintained that
complainant's reassignment to the National Forms Center was the result
of her failure to complete assignments and her absence from work for long
periods of time without explanation. The agency acknowledged it received
some complaints from complainant about rats in her work station, and
stated it contacted an exterminator each time to deal with the problem.
The agency asserted that complainant's work station was a warehouse
facility where such infestations are likely to occur. The agency also
maintained that the workspace requested by complainant to avoid noise was
actually worse for her than her current workspace, since it was narrow
and contained the only telephone and facsimile equipment in the building,
which necessitated constant traffic by employees in the building.
With regard to complainant's request to work from home, the agency noted
that there were no clerks who worked at home, and the only computers for
work at home were given to employees in the position of GS-09 or higher.
The AJ noted that the agency explained that complainant's request to work
at home was incompatible with her actual duties, which required the use
of computer connections only available at the forms center facility.
With regard to her request to work a flexible schedule, the AJ noted
that the agency stated that the forms center closed at 3:30 p.m. and
there were few employees working after that time. The agency also
stated that allowing complainant to work at the center alone was not an
option for safety reasons, since complainant had already demonstrated
the potential for having dangerous seizures/panic attacks at work which
sometimes required serious medical attention.
With regard to her request for reassignment, the AJ noted that the
agency's Lead Employment Specialist searched within the region four
to five times and never found a position into which complainant could
be reassigned. The Lead Employment Specialist explained that the agency
was shifting away from administrative positions due to the increased use
of technology. The agency also stated it undertook two "hard searches"
nationwide for positions for complainant and no positions were found.
With regard to the two positions filled by Employee 1 and Employee 2, the
AJ found that these were not new vacancies. The AJ noted that there were
no applications for the positions filled by Employee 1 and Employee 2;
rather, they were incumbent employees who received an upgrade. The AJ
did not find complainant was discriminated against on any of the bases
alleged in her complaint.
The AJ also noted that complainant claimed that she was subjected to
discrimination in reprisal for prior protected activity when she received
performance counseling by her first level supervisor. The AJ noted that
there were never any adverse actions which flowed from those performance
counseling sessions. The AJ found that the reprisal allegations fail for
lack of an adverse action. While the AJ noted that there were subsequent
adverse actions taken against complainant, he found none of them impact
the issues of this particular case.
Despite complainant's contentions that the agency did not engage in the
interactive process, the AJ found the agency considered accommodations for
complainant's medical conditions. The AJ found there was no alternative
schedule available for complainant which did not include the requirement
to change the schedules of other employees in order to allow complainant
to work eight full hours without a 7:00 a.m. start time. The AJ noted
that changing the schedules of other employees was not required under
the Rehabilitation Act and that permitting complainant to take leave was
the only other possible accommodation. The AJ noted the agency provided
complainant the opportunity to take leave on an unlimited basis which
allowed her to perform the essential functions of her position.
Finally, the AJ noted that Agency Exhibit #37, Request for Leave Donation,
consisting of an April 24, 2001 electronic mail message, described
complainant's diagnosed medical conditions as "Post Traumatic Stress
Disorder, Panic/Anxiety Disorder with Agoraphobia." The AJ stated it
appeared that this electronic mail message gained wide distribution,
as the purpose of the message was to widely circulate the request for
leave to secure donations. The AJ found the disclosure of complainant's
diagnosed condition by her second level supervisor, S2, constituted a
per se violation of the Rehabilitation Act. The AJ did not award any
relief for the per se violation.
The agency subsequently issued its final action on July 16, 2008.
The agency's final action fully implemented the AJ's decision.
In her brief dated October 4, 2008, complainant claims that the agency
subjected her to harassment and reprisal when it left her in a work
environment where there was a problem with rodents. Complainant contends
that she would not have requested a reassignment had the agency taken
aggressive action against the rodents and reduced the riveting noise of
the dot matrix printer next to her office. Complainant asserts that she
could have been reassigned to the positions Employees 1 and 2 occupied
after they were promoted. Complainant states that Employee 1 was hired as
a GS-4 Personnel Clerk in November 2000, and was later non-competitively
promoted to a GS-05 Human Resources Assistant. Complainant also states
that Employee 2 was hired as a GS-04 Personnel Clerk in November 2000, and
later non-competitively promoted into a GS-05 Human Resources Assistant.
Complainant contends that neither of the promotion actions concerning
Employee 1 and Employee 2 are consistent with 5 C.F.R. �300.603 and
�335.103. Complainant disputes the agency's position that the two
promotions at issue resulted from an accretion of duties.
With regard to her reasonable accommodations requests, complainant argues
that even if the agency did not have any available positions they could
have accommodated her under the Office of Workers' Compensation Program
(OWCP). Complainant notes that her claim concerning her working
conditions was accepted by OWCP and the agency did not controvert
her claim.
Complainant also claims that the agency harassed and retaliated
against her when it circulated her medical diagnosis across the country.
Complainant claims that she was harmed by this disclosure since she claims
it negatively affected the amount of leave she received. Additionally,
complainant contends that it effected how others, including her co-workers
treated her.
Finally, complainant raises objections to the AJ's handling of her case.
Specifically, she claims that the AJ has been practicing law with an
"inactive license" since 1982. Complainant also contends that the AJ
failed to rule on her motion to compel the agency to provide discovery
and interrogatories. Additionally, complainant claims the AJ failed to
rule on her motion for summary judgment.3
In response to complainant's appeal, the agency requests the Commission
uphold its final action. The agency claims the AJ properly found
that complainant was not subject to discrimination on any of the
bases or issues alleged in her complaint. The agency also states that
disclosure of complainant's personal medical information was not accepted,
investigated, or raised at or during the hearing.
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).
Upon review, we find substantial evidence supports the AJ's decision.
The record reveals that complainant complained to management regarding
rodents in the work area and the agency had an exterminator come to
the office several times to address the problem. The record reveals
complainant requested to work from home, to have a flexible work schedule,
and to be reassigned to a different office. Complainant was not permitted
to work from home since her job required the use of computer connections
only available at the forms center facility. Complainant was denied the
opportunity to work at the forms center after 3:30 p.m. since the center
closed at 3:30 p.m. and there were few employees working after that time.
The agency did not permit complainant to work at the center alone
since she had already demonstrated the potential for having dangerous
seizures/panic attacks at work which sometimes required serious medical
attention. However, the agency permitted complainant to take leave if
she could not arrive at work at her designated start time. Moreover,
while complainant requested to work in an alternative workspace which
she claimed was less noisy than her workspace at the time, the record
shows that this location was narrow and contained the only telephone
and facsimile equipment in the building, which necessitated constant
traffic by employees in the building.
With regard to her claim of reprisal, complainant contends that
she received performance counseling by her first level supervisor.
Upon review, we find complainant failed to show that the agency's actions
were taken in reprisal for prior protected activity.
With regard to her request for reassignment to a new position, the
record reveals that the agency conducted numerous searches but did not
find a vacant, funded position into which complainant could be assigned.
With regard to the two positions filled by Employee 1 and Employee 2, we
find that these identified positions were not new vacancies but, rather,
resulted from an upgrade of the incumbents resulting from an accretion
of duties. Moreover, with regard to the advertised GS-6, Business
Assistant Position, we note that under the Rehabilitation Act the agency
is not required to promote complainant into a higher graded position.
Complainant failed to identify any vacant, funded position into which
she could have been reassigned. Moreover, we find complainant failed
to show that she was subjected to discrimination based on her race,
disability, or in reprisal for prior protected activity in connection
with the incidents alleged.4
With regard to complainant's challenge to the AJ's right to conduct the
hearing we note that complainant raises this claim for the first time
on appeal. The record reveals complainant had the information forming
the basis of this challenge prior to the conclusion of the hearing;
however, she did not raise this claim at the hearing level. Based on
her failure to raise this issue at the hearing, we find complainant is
precluded from raising the issue for the first time on appeal.
With regard to complainant's claim that the AJ failed to rule on her
motion for summary judgment, we find that by holding a hearing on the
matter the AJ in effect denied her motion. Moreover, to the extent that
the AJ failed to rule on complainant's motion to compel, we find this
is harmless error, as complainant failed to identify how the agency's
failure to respond to her discovery requests prejudiced her case.
Further, although complainant claimed on appeal that the AJ did not
allow one of her witnesses to testify, we find complainant did not meet
her burden in showing why the testimony of the witness in question was
necessary. Finally, with regard to complainant's contentions that the
promotion actions concerning Employee 1 and Employee 2 are inconsistent
with 5 C.F.R. �300.603 and �335.103, we note these provisions fall outside
the Commission's jurisdiction. Similarly, with regard to complainant's
argument that even if the agency did not have any available positions
they could have accommodated her under the OWCP, we note the Commission
does not enforce OWCP claims.
We note the agency fully implemented the AJ's decision. Since the agency
does not challenge the AJ's finding that its disclosure of complainant's
diagnosed medical condition to unauthorized persons was a per se violation
of the Rehabilitation Act, we do not address the merits of this issue
on appeal. If the agency disagreed with whether the disclosure of
confidential medical information was a claim in the complaint, then the
agency should not have fully implemented the AJ's decision and should
have filed an appeal with the Commission. The agency did not do so.
By fully implementing the AJ's decision, the agency can not now argue
that the AJ's decision was flawed. We find, however, the AJ erred in
failing to award relief for this violation. Thus, we modify the AJ's
decision to include the relief specified herein. Since complainant was
not represented by an attorney at the hearing or on appeal, an award of
attorney's fees is not appropriate.
CONCLUSION
The agency's decision finding no discrimination regarding all claims apart
from the disclosure of confidential medical information claim is AFFIRMED.
The agency's decision regarding the disclosure of confidential medical
information is MODIFIED so that the agency may provide the relief ordered
herein.
ORDER
The agency shall take the following remedial actions:
1. Within 90 days of the date this decision becomes final, the agency
shall provide EEO training to S2 focusing on the agency's obligation
under the Rehabilitation Act to keep medical information confidential.
2. Within 90 days of the date this decision becomes final, the agency
shall consider taking disciplinary action against S2 for violating
the Rehabilitation Act. The agency shall report its decision to
the Commission. If the agency decides to take disciplinary action,
it shall identify the action taken. If the agency decides not to take
disciplinary action, it shall set forth the reasons(s) for its decision
not to impose discipline.
3. Within 15 days of the date this decision becomes final, the agency
shall give complainant a notice of her right to submit objective evidence
(pursuant to the guidance given in Carle v. Department of the Navy,
EEOC Appeal No. 01922369 (January 15, 1993)), in support of his claim
for compensatory damages within 45 days of the date complainant receives
the agency's notice. The agency shall complete the investigation on
the claim for compensatory damages within 45 days of the date the agency
receives complainant's claim for compensatory damages. Thereafter, the
agency shall process the claim in accordance with 29 C.F.R. �1614.110.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its National Forms and Publications
Center, Fort Worth, Texas 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 (K1208)
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 (M1208)
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 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 (T0408)
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 (Z1008)
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:
December 10, 2009
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__________________
Date
1 In an affidavit, however, complainant asserts she has agoraphobia.
Furthermore, in an October 14, 1999 letter Doctor A states complainant
has panic disorder with agoraphobia.
2 It is unclear from the record what documents were attached to the
WH-380 form.
3 We note complainant submitted additional statements in support of
her appeal which were filed after her brief dated October 4, 2008.
The Commission will not consider these additional statements as they
were submitted beyond the applicable limitations period.
4 We do not address in this decision whether complainant is a qualified
individual with a disability.
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0120083575
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120083575