0120090568
08-24-2012
Robert Pumphrey, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior (Bureau of Indian Affairs), Agency.
Robert Pumphrey,
Complainant,
v.
Ken L. Salazar,
Secretary,
Department of the Interior
(Bureau of Indian Affairs),
Agency.
Appeal No. 0120090568
Hearing No. 551-2007-00113X
Agency No. BIA-06-036
DECISION
On November 7, 2008, Complainant filed an appeal from the Agency's October 15, 2008 final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. The Commission accepts the appeal pursuant to
29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are: (1) whether the EEOC Administrative Judge's issuance of a decision without a hearing was appropriate; (2) whether the EEOC Administrative Judge correctly dismissed claim 1a for untimely EEO Counselor contact; and (3) whether Complainant established that the Agency subjected him to discrimination and hostile work environment harassment on the bases of race (Caucasian), sex (male) and reprisal for prior protected EEO activity.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Social Worker - Individual Indian Money (IIM) Coordinator, GS-0185-12, at the Agency's Rocky Mountain Regional Office, Division of Indian Services in Billings, Montana. As the IIM Coordinator, Complainant's duties primarily consisted of handling IIM accounts.1 The Supervisory Social Worker was Complainant's First Level Supervisor (S1 - Native-American, female). The Indian Services Officer was Complainant's Second Level Supervisor (S2 - Native-American, female).
On November 29, 2005, S1 gave Complainant a "Fully Successful" rating on his performance appraisal for FY 2005. Complainant disagreed with the rating and requested an additional review pursuant to the Agency's reconsideration process. On February 27, 2006, the Agency denied Complainant's reconsideration request and sustained his "Fully Successful" rating.
On February 8, 2006, S1 denied Complainant's request to attend the Child Welfare League of America's conference in Washington, DC. Specifically, S1's email to Complainant stated that, after talking with S2, his request was not approved because his position involved IIM accounts and the training did not apply to his position.
On February 22, 2006, S1 issued Complainant a memorandum regarding his Alternate Work Schedule (AWS).2 Specifically, the memorandum reminded Complainant that Regional policy required an employee going on training or travel status to revert back to a 40 hour a week schedule for that particular pay period. In addition, the memorandum noted that Complainant did not adhere to the policy when, despite traveling on February 7 - 8, 2006, he continued to work his AWS and took his AWS day off on February 17, 2006. Further, the memorandum stated that, if Complainant failed to follow this warning and comply with the AWS policy, he would be charged with Absence Without Leave and/or taken off of AWS. Complainant felt that this memorandum was harassing because S1 and S2 would wait until the last minute to notify him of approved travel and he would be caught in a situation where he had been working AWS for part of a pay period.
On May 3, 2006, S1 denied Complainant's request to attend the Department of the Interior University's Pathways to Leadership Program, a 12-month training program. Specifically, S1's written response to Complainant indicated that she could not approve his request due to limited funds.
On October 5, 2006, S1 issued Complainant a letter of reprimand for unprofessional conduct towards co-workers. Specifically, the letter cited a September 27, 2006 incident in which a female co-worker (C1) reported that Complainant's behavior, demanding manner, and unprofessional conduct intimidated her and created a hostile work environment. In addition, the letter cited a September 28, 2006 incident in which a female co-worker (C2) reported that Complainant spoke in a loud voice and said, "Come on, I'm ready to fight." The record contains two memoranda to S1, from C1 and C2, describing in detail the incidents on September 27-28, 2006.
On April 16, 2007, S1 issued Complainant a 14-day proposed suspension for using abusive language to another employee. Specifically, the proposed suspension cited a December 15, 2006 incident in which a female co-worker (C3) reported that, while shaking a letter at her, Complainant told her in a loud and angry manner that she did not know what she was doing and that she had better learn human resources regulations. On June 14, 2007, the Deputy Regional Director - Indian Services (D1 - unknown race, male) sustained the charge and suspended Complainant for seven days. The record contains a January 29, 2007 email from C3 to Human Resources describing in detail the incident on December 15, 2006. The record also contains a February 12, 2007 email from a witness (W1) to Human Resources which stated, "I do not remember the exact responses of what was said but I know [Complainant] wasn't happy with [C3]'s answer."
In addition to the above incidents, Complainant felt that S1 and S2 closely scrutinized his work. For example, Complainant alleged that he had weekly meetings with S1. Further, Complainant alleged that they did not give him the authority to sign off on email or written correspondence. Moreover, Complainant alleged that they made unnecessary changes to his written assessments and evaluations that did not "add depth or substance." Finally, Complainant alleged that they questioned him about his work schedule and what tasks he planned to accomplish each week.
On March 13, 2006, Complainant contacted an EEO Counselor. Complainant filed an EEO complaint alleging that the Agency subjected him to discrimination on the bases of race (Caucasian), sex (male), and reprisal for prior protected EEO activity (EEO complaints against S1 and S2 settled in April 2002 and March 2005; instant EEO complaint) when:3
1. He was subjected to a hostile work environment, to include the following incidents:
a. Rating of only "Fully Successful" on his performance appraisal;
b. Denial of training opportunities;
c. Harassment about his work schedule;
d. Close scrutiny of his work.
2. On October 5, 2006, he received a letter of reprimand; and
3. On June 14, 2007, he received a seven-day suspension.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's October 4, 2007 motion for a decision without a hearing and issued a decision without a hearing on September 29, 2008. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination and harassment as alleged.
In his decision, the AJ initially dismissed claim 1a pursuant to 29 C.F.R. � 1614.109(b), for untimely EEO Counselor contact. Specifically, the AJ found that claim 1a is a discrete event that occurred on November 29, 2005 and that Complainant's March 13, 2006 EEO Counselor contact was beyond the 45-day time frame.
Next, the AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Regarding claim 1b, the Agency explained that the first training was not applicable to Complainant's position and that the second training was not feasible due to the lack of funds to send him to the year-long program. Regarding claim 1c, the Agency explained that it issued Complainant a reminder memorandum about the policy because he would return from travel status (requiring a regular eight-hour day) and then improperly take a day off on Friday (relying on his AWS). Regarding claim 1d, the Agency explained that it asked Complainant and other employees to submit their weekly work schedules so that it could know what they were doing, where they were going, and what they had accomplished. In addition, the Agency explained that only management had authority to send out written correspondence. Further, the Agency explained that Complainant previously had authority to send out email correspondence, but that authority was removed because there had been complaints about his correspondence. Regarding claim 2, the Agency explained that the letter of reprimand was based on two employee complaints about Complainant's behavior. Regarding claim 3, the Agency explained that the suspension was based on an employee complaint about Complainant's behavior.
Finally, the AJ found that Complainant failed to establish that the Agency's reasons were a pretext for discrimination. The AJ stated that Complainant's theory is that S1 and S2 are out to get him by constantly keeping an eye on his work and his whereabouts, and by disciplining him. The AJ determined, however, that there was no nexus between management's actions and his race, sex, or prior EEO activity.
CONTENTIONS ON APPEAL
On appeal, Complainant requested that we remand his complaint back to the AJ for a hearing. First, Complainant argued that the AJ erred in dismissing claim 1a. Specifically, Complainant asserted that his March 13, 2006 EEO Counselor contact was within 45 days of the Agency's February 27, 2006 denial of his reconsideration request.
Second, Complainant argued that there are genuine issues of material fact with respect to claim 1c. Specifically, Complainant asserted that he told the EEO Counselor about several named employees who were treated differently regarding AWS than he was, the EEO Counselor interviewed them, but the EEO Counselor failed to attach their statements to the EEO Counselor's Report. In addition, Complainant asserted that he asked the EEO Investigator to interview several named employees on the same subject and that the EEO Investigator did not do so, even though each of those employees witnessed his disparate treatment on the AWS issue.
Third, Complainant argued that there are genuine issues of material fact concerning the December 15, 2006 allegations of misconduct in claim 3. Specifically, Complainant asserted that there are questions concerning C3's version of the events, that W1 did not corroborate C3's version of the events, and that all the Agency employees involved in the incident, from the reporting employee to the deciding official, were aware of his prior EEO activity and "leaped on this manufactured event" as a means of imposing retaliatory discipline.
The Agency did not submit a statement or brief in response to Complainant's appeal.
ANALYSIS AND FINDINGS
Standard of Review
In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 9, � VI.B. (Nov. 9, 1999) (providing that both the AJ's determination to issue a decision without a hearing, and the decision itself, are subject to de novo review). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See EEO MD-110, at Ch. 9, � VI.A. (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").
AJ's Issuance of a Decision Without a Hearing
We must first determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case.
If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the AJ must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing.
Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an AJ could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
After a careful review of the record, we find that the AJ's issuance of a decision without a hearing was appropriate. The record has been adequately developed, Complainant was given notice of the Agency's motion to issue a decision without a hearing, he was given a comprehensive statement of the allegedly undisputed material facts, he was given the opportunity to respond, and he had the opportunity to engage in discovery. We find that, even assuming all facts in favor of Complainant, a reasonable fact-finder could not find in his favor, as explained below. Therefore, we find that no genuine issues of material fact exist. Under these circumstances, we find that the AJ's issuance of a decision without a hearing was appropriate.
Untimely EEO Counselor Contact - Claim 1a
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the EEO 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. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent.
The Supreme Court has held that a complaint alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002). The Court further held, however, that "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Id. at 113. Claims involving events such as termination, failure to promote, denial of transfer, or refusal to hire are clearly defined and are considered to be discrete acts. Id. at 114. With a discrete act, each incident of discrimination constitutes a separate actionable "unlawful employment practice." Id. Finally, the Court held that such untimely discrete acts may be used as background evidence in support of a timely claim. Id.
Upon review of the record, we find that the AJ properly found that Complainant's March 23, 2006 EEO Counselor contact was untimely as to claim 1a, because the performance appraisal was an untimely discrete act. This alleged discriminatory act occurred on November 29, 2005 when Complainant received the performance appraisal, but he did not contact an EEO Counselor until March 23, 2006, which was beyond the 45-day regulatory limit. On appeal, Complainant argued that his performance appraisal was not finalized until February 27, 2006 when the Agency denied his reconsideration request. However, the Commission has repeatedly held that the initiation of other appeal processes does not toll the time limit for seeking EEO Counseling. See Roberts v. U.S. Postal Serv., EEOC Request No. 05990392 (July 16, 1999) (finding that a complainant's attempt to resolve an unfavorable performance rating through an internal appeals process did not justify tolling the time limit for contacting an EEO Counselor).
Accordingly, we find that the AJ correctly dismissed claim 1a for untimely EEO Counselor contact and will consider this only as background evidence in support of Complainant's overall harassment claim.
Disparate Treatment - Claims 1b, 2, and 3
We find that some of Complainant's allegations involve discrete acts that independently state claims outside of a harassment framework. We therefore review those incidents in the context of disparate treatment.
To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he 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). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. 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).
Claim 1b
Assuming, arguendo, that Complainant established a prima facie case of discrimination on the alleged bases, we find that the Agency articulated legitimate, nondiscriminatory reasons for denying his training requests. Regarding the February 8, 2006 denial of training, S1 and S2 averred that the training was not relevant to Complainant's IIM position and that they wanted him to attend training on topics (trusts, guardianships, and fiduciary behavior) more directly related to his IIM duties. Regarding the May 3, 2006 denial of training, S1 and S2 averred that Social Services did not have the money in its budget to pay for Complainant's attendance at the year-long program.
Because the Agency articulated legitimate, nondiscriminatory reasons for its actions, the burden shifts to Complainant to prove, by a preponderance of the evidence, that the Agency's reasons were a pretext for race, sex, and reprisal discrimination. Regarding the February 8, 2006 denial of training, Complainant averred that his position "is kind of broad in terms of not just doing IIM" and that he saw the training as an opportunity to broaden his knowledge base and his skills. Regarding the May 3, 2006 denial of training, Complainant averred that management's explanation was pretextual and implied that the Division of Indian Services had funding for other employees to attend out-of-town training.
Upon review, we find that Complainant failed to show that the Agency's reasons were pretexutal. In so finding, we note that, despite Complainant's assertion otherwise, all the major duties of his IIM Coordinator position involve IIM accounts - as reflected in the critical elements of his FY 2006 performance appraisal. In addition, Complainant did not assert that the first training was relevant to his IIM duties. Moreover, Complainant did not identify any similarly situated employees outside of his protected classes whose training requests were approved by S1 and S2 around the time period that his second request was denied.
Claim 2
Assuming, arguendo, that Complainant established a prima facie case of discrimination on the alleged bases, we find that the Agency articulated a legitimate, nondiscriminatory reason for issuing him a letter of reprimand. Specifically, S1 averred that she disciplined Complainant because both C1 and C2 came to talk to her about his unprofessional behavior.
Because the Agency articulated legitimate, nondiscriminatory reasons for its actions, the burden shifts to Complainant to prove, by a preponderance of the evidence, that the Agency's reasons were a pretext for race, sex, and reprisal discrimination. In an attempt to show pretext, Complainant acknowledged that he got into "very heated discussion[s]" with C1 and C2, but averred that the reprimand was unwarranted because his behavior did not rise to the level of unprofessional conduct. In addition, Complainant averred that the Agency failed to provide sufficient evidence to support its disciplinary charge. Further, Complainant averred that other employees involved in "very heated discussions" did not receive any discipline.
Upon review, we find that Complainant failed to show that the Agency's reason was pretextual. In so finding, we note that it is undisputed that S1 relied on the allegations of C1 and C2 in order to reprimand Complainant. Although S1 chose to believe C1/C2's version of the events over Complainant's version of the events, there is no evidence that her decision to do so was unreasonable and was motivated by Complainant's race, sex, or prior EEO activity. While Complainant asserted that other employees also involved in "very heated discussions" were treated differently, he provided no evidence that those discussions were similar to the allegations raised by C1 and C2.
Claim 3
Assuming, arguendo, that Complainant established a prima facie case of discrimination on the alleged bases, we find that the Agency articulated a legitimate, nondiscriminatory reason for issuing him a seven-day suspension. Specifically, S1 averred that she proposed the discipline after S2 made her aware of the incident between Complainant and C3. In addition, D1 averred that he decided to suspend Complainant based on the information he was provided about the incident.
Because the Agency articulated legitimate, nondiscriminatory reasons for its actions, the burden shifts to Complainant to prove, by a preponderance of the evidence, that the Agency's reasons were a pretext for race, sex, and reprisal discrimination. In an attempt to show pretext, Complainant essentially argued on appeal that the suspension was unwarranted because the incident did not occur as portrayed by management (i.e., he did not use abusive language as alleged) and that everyone involved (C3, Human Resources, S2, S1, and D1) conspired to retaliate against him.
Upon review, we find that Complainant failed to show that the Agency's reason was pretextual. In so finding, we note that it is undisputed that S1 and D1 relied on C3's allegation in order to suspend Complainant. Although S1 and D1 chose to believe C3's version of the events over Complainant's version of the events, there is no evidence that their decision to do so was unreasonable and was motivated by Complainant's race, sex, or prior EEO activity. While Complainant argued on appeal that the Agency failed to adequately justify his suspension and that numerous questions still remain about the events of December 15, 2006, we emphasize that the relevant inquiry for us is whether he has shown, by a preponderance of the evidence, that his suspension was discriminatory - not whether the Agency has shown that S1 and D1 were correct in believing C3 over him. Moreover, Complainant has not shown that other employees outside of his protected classes were accused of engaging in similar misconduct, were not charged with using abusive language, and were not suspended for seven days.
Harassment
To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994).
Regarding claims 1b, 2, and 3, we find, under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), that Complainant's claim of hostile work environment must fail. See Harris Guidance. A finding of hostile work environment is precluded by our determination that Complainant failed to establish that the Agency's actions in claims 1b, 2, and 3 were motivated by discrimination or retaliation. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000).
Regarding the remaining claims (claims 1c and 1d) that are part of the alleged harassment, we find that, even if true, they are not sufficiently severe or pervasive to constitute a hostile work environment.
Based on Complainant's affidavit, we find that his allegation of harassment about his work schedule consists of the following unwelcome conduct: the February 22, 2006 memorandum and S1/S2 waiting until the last minute to notify him of approved travel, thereby causing problems with AWS. For example, Complainant averred:
I'm caught in a situation where I've already worked 44 hours and what do I do with the 36? ... You're supposed to know in advance within the two weeks ... (hopefully within the two weeks) prior to what your schedule is. I try to do that. But the way [S2] and [S1] administer the program, they wait until the last minute to tell you. So I don't know ... It creates all kinds of situations that I try to avoid in advance. I try to plan, and meet my requirements with my schedule. They intentionally wait until the last minute to change my schedule ... It becomes a very threatening situation.
Based on Complainant's affidavit, we find that his allegation of close scrutiny of his work consists of the following unwelcome conduct: weekly meetings; the inability to sign off on email or written correspondence; unnecessary changes to his written work product; questions about his work schedule; and questions about what tasks he planned to accomplish each week.
We find that the unwelcome conduct alleged in claims 1c and 1d does not alter the conditions of Complainant's employment and create an abusive working environment. While the record suggests that Complainant was dissatisfied with S1/S2's methods of supervision, we note that Title VII is not a civility code. Rather, it forbids "only behavior so objectively offensive as to alter the conditions of the victim's employment. Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Based on Complainant's affidavit, we find that the identified matters are normal workplace interactions between management and employees which, without more, are not sufficiently severe or pervasive to render the work environment hostile.
Accordingly, we find that Complainant failed to establish a claim of harassment.
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 order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (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
___8/24/12_______________
Date
1 Complainant's Fiscal Year (FY) 2006 performance appraisal lists five critical elements, all of which reference IIM accounts. For example, the critical elements include identifying and reviewing IIM accounts, identifying corrections and deficiencies on IIM accounts, providing technical assistance and consultation on IIM accounts, organizing and maintaining case file documentation on IIM accounts, and providing direct services to IIM accounts.
2 Complainant's AWS allows him to work 44 hours one week and 36 hours the next week.
3 For purposes of clarity, we have rephrased and renumbered the claims.
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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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