0120101788
08-26-2010
Sherry A. Wimmer, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.
Sherry A. Wimmer,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Investigation),
Agency.
Appeal No. 0120101788
Hearing No. 550-2009-00118X
Agency No. F-08-6453
DECISION
On March 20, 2010, Complainant filed an appeal from the Agency's March 12, 2010, final action concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. 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 action.
ISSUES PRESENTED
The issues presented are: (1) whether the EEOC Administrative Judge (AJ) properly issued a decision without a hearing and (2) whether Complainant established that she was subject to discrimination based on race and reprisal as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisory Administrative Specialist (SAS), GS-0301-12, in the Agency's Las Vegas Division, Las Vegas, Nevada. On March 26, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of race (African-American) when:
1. In December 2006, a Supervisory Information Technology Specialist (SITS) said "I don't have to listen to a GS-11" to Complainant because SITS was a GS-13;
2. In December 2006, and January 2007, a Supervisory Administrative Specialist (SAS) repeatedly said "You make no sense to me" during meetings;
3. In February 2007, a Financial Manager (FM) berated Complainant and pointed his finger in her face;
4. In September 2007, the Office Supply Technician (OST) would not process Complainant's invoices; and
5. On November 16, 2007, Complainant received a rating of "successful" on her Performance Appraisal Report (PAR).
On March 14, 2008, Complainant amended her complaint and alleged that the Agency discriminated against her in reprisal for prior EEO activity when:
6. On March 14, 2008, Complainant's previously approved request to attend the National Organization of Black Law Enforcement (NOBLE) conference was denied.
On June 10, 2008, the Agency dismissed Complainant's claims 1, 2, and 3 of hostile work environment as untimely because Complainant failed contact an EEO Counselor within 45-days of the incidents. Agency's June 10, 2008 Letter at 2. Further, the Agency determined that claims 1, 2, and 3 failed to state a claim for harassment because they were not sufficiently severe or pervasive. Id. The Agency accepted Complainant's claims 4, 5, and 6 for investigation. Id. at 1. On June 18, 2008, Complainant asked that the Agency reconsider the dismissal of claims 1, 2, and 3. Complainant's Appeal of Dismissal of Claims at 1. On July 9, 2008, the Agency denied Complainant's request for reconsideration and proceeded with the investigation of claims 4, 5, and 6. Agency's July 9, 2008 Letter at 1.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the Report of Investigation (ROI) and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing. Over the Complainant's objections, the AJ assigned to the case granted the Agency's April 24, 2009, motion for a decision without a hearing and issued a decision without a hearing in favor of the agency on January 27, 2010. AJ Decision at 2.
In her request for a hearing, Complainant had included documents related to her being replaced as Safety Chairperson on July 17, 2009. AJ Decision at 3-4. Complainant stated that she believed she was removed in reprisal for filing a complaint. Id. The AJ determined that it was unclear whether Complainant was attempting to amend her complaint. Id. at 4. However, the AJ declined to amend her complaint with this claim because the Agency did not have the opportunity to respond, it involved a different basis of discrimination than the pending claims1, and the issue possibly includes other management officials and witnesses who were not involved in Complainant's pending claims. The AJ issued an order giving Complainant 15 days from the date of the Decision to seek EEO counseling on her reprisal claim. Id.
With regard to claims 4, 5, and 6, the AJ found the following undisputed facts: FM, SAS, SITS, OFT and Complainant had interpersonal conflicts which resulted in a "volatile," "tense," and "difficult working environment." Id. at 7. The Chief Administrative Officer (CAO) determined that all of the participants shared responsibility for the dysfunctional climate and repeatedly spoke with FM, SAS, SITS, OST and Complainant. Id. The AJ found that Complainant's participation in the conflict was due to the fact that she was "too direct in her dealings with people, came across as curt and short, was perceived to be rude and was the source of hurt feelings." Id.
With regard to claim 4, CAO was aware of Complainant's difficulties with OST and CAO herself had difficulties working with OST. Id. at 8. CAO was aware that OST was difficult when it came to fulfilling Complainant's particular needs and CAO met with all parties to correct the problem. Id. The AJ found that CAO encouraged OST's supervisor to take action. Id. Within a month or two following these incidents, OST was no longer in that position. Id. The AJ found, however, that as a result of OST's performance deficiencies, "Complainant was not aggrieved and did not suffer any tangible or material adverse personnel consequence." Id. at 9. The AJ determined that CAO "immediately sought to lake corrective action" and that the record contained no evidence to show that OST was motivated by Complainant's race. Id.
With regard to claim 5, the AJ found that in November 2007, Complainant received an overall rating of "successful" on her PAR. Id. at 11. CAO's determination that Complainant, a GS-12 supervisor, should have behaved more professionally and resolved her work relationship problems resulted in a "successful" PAR rating for "Ability to Relate to Others and Provide Professional Service." Id. Further, CAO provided specific examples where Complainant missed deadlines, could not order supplies properly, and need more guidance. Id. The AJ found that Complainant failed to show that she suffered a tangible harm when she received a "successful" rating because she did not suffer any loss of "bonus, award, grade, opportunity for advancement, or related distinction honor." Id. Further, the AJ concluded that even if she did suffer a tangible harm, the Agency offered legitimate, nondiscriminatory reasons which she failed to show were a pretext for discrimination. Id. at 12.
With regard to claim 6, the AJ found that the Agency's Special Emphasis Program Manager (SEPM) was selected to attend the NOBLE conference and Complainant was selected as an alternate. Id. at 10. SEPM was notified in advance that because of budget constraints her travel authorization could be canceled. Id. After SEPM could not attend the conference, CAO, an Assistant Special Agent in Charge (ASAC1), and another Assistant Special Agent in Charge (ASAC2) decided that instead of sending an alternate, the Agency would not participate in NOBLE in 2008 due to budget limitations and because Complainant had attended in 2007. Id. The AJ found that Complainant failed to establish a prima facie case of discrimination based on race. Id. Further, the AJ found that Complainant failed to show that CAO, ASAC1 and ASAC2 were motivated by discriminatory animus. Id.
The Agency was required to issue a final order by March 12, 2010. The record reveals that the Agency drafted a final order dated March 12, 2010; however, the record does not contain any evidence of when or where it was mailed. Accordingly, we find that the Agency's final order was untimely. Nevertheless, when the Agency failed to issue a final order within forty days of receipt of the AJ's decision, the AJ's decision becomes the Agency's final Action. 29 C.F.R. � 1614.109(i). Complainant appeals from the Agency's final action.
CONTENTIONS ON APPEAL
On appeal, Complainant states that several witnesses who could have supported her claims were not interviewed. Complainant also appears to argue that the AJ abused his discretion with regard to the settlement proceedings that occurred prior to the hearing. With regard to Complainant's claim that she was removed from the Field Office Safety Chairperson position on July 17, 2009, Complainant argues that the AJ's delay in issuing the decision resulted in delaying her ability to file a complaint in a timely manner. Additionally, Complainant states that when she met with EEO Counselors she was told she could not file a claim of reprisal because she had passed the 45-day time limit. Complainant also argues that she was subjected to a hostile work environment and appears to be arguing that she requests remedies with regard to the remaining claims. On appeal, the Agency requests that we affirm its final order adopting the AJ's decision.
ANALYSIS AND FINDINGS
Preliminary Matters
We note that it is unclear from Complainant's appeal brief specifically what conduct of the AJ she found to be objectionable at the settlement stage. Therefore, we cannot find that the AJ abused his discretion in any regard.
We also find the AJ did not err in delaying to issue a ruling on the claim Complainant raised for the first time at the hearing. However, we note Complainant's contention on appeal that she was denied the opportunity to file a formal complaint in connection with that claim because the Agency's EEO Counselors considered her claim to be untimely raised. We note that while our regulations permit an agency to dismiss a complaint for untimely EEO Counselor contact, see 29 C.F.R. � 1614.107(a)(2), they do not permit an agency to deny an individual the right to file a formal EEO complaint. The AJ assigned to this case ordered that Complainant be allowed up to 15 days to initiate contact with an EEO Counselor. It appears, however, that the Agency's EEO Counselors refused to provide counseling. We therefore will return this case to the Agency, in part, for the Agency to provide Complainant with EEO Counseling, as ordered by the AJ.2
The Agency's Dismissal of Claims 1, 2, and 3
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985). A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the complainant cannot prove a set of facts in support of the claim which would entitle the complainant to relief. The trier of fact must consider all of the alleged harassing incidents and remarks, and the complainant's allegations must be taken as true, in order to determine whether they are sufficient to state a claim. Cobb v. Dep't of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997).
Harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant's employment. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116 (2002), quoting Harris v. Forklift Sys. Inc., 510 U.S. 17, 21 (1993). An "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive" and the complainant subjectively perceives it as such. Harris, at 21-22.
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. Morgan, 536 U.S. at 122. Complainant contacted an EEO Counselor with regard to her harassment claim on December 5, 2007. Counselor's Report at 2. We find that claims 1, 2, and 3 occurred more than 45-days prior to Complainant's contact with an EEO Counselor. However, claims 4, 5, and 6 occurred within 45-days of Complainant's contact with an EEO Counselor. Therefore, we find that claims 1, 2, and 3 are not time barred. See Morgan, 536 U.S. at 122.
However, even taking the claims in together, we find that Complainant failed to state a claim of harassment. While the Commission finds that these acts, if assumed to have occurred as alleged by Complainant, are unprofessional, we nonetheless find that these incidents taken together are not sufficiently severe or pervasive to state a claim of harassment. The incidents do not rise to the level of a hostile or abusive environment. Accordingly, we find that the Agency appropriately dismissed Complainant's complaint for failure to state a claim.
Decision without a Hearing
In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions 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, at Chapter 9, � VI.B. (Nov. 9, 1999) (providing that an administrative judge's "decision to issue a decision without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed de novo"). 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 id. at Chapter 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").
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. 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 administrative judge 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 administrative judge 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 appropriately issued a decision without a hearing. The record reveals that ample notice of the proposal to issue a decision without a hearing was given to the parties; a comprehensive statement of the allegedly undisputed material facts existed; the parties had the opportunity to respond to such a statement, and the parties has the chance to engage in discovery before responding.
Complainant argues on appeal that the record is not sufficiently developed because a number of her proposed witnesses were not interviewed by the EEO Investigator or the AJ. Nevertheless, we find that the record is sufficiently established to issue a decision without a hearing. Moreover, Complainant has not demonstrated specifically what evidence those witnesses would provide that is otherwise missing from the record.
To prevail in a disparate treatment claim such as this, complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, complainant must prove, by a preponderance of the evidence, that the agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997); Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
With regard to claim 4, and assuming, arguendo, that Complainant could establish a prima facie case, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, the record establishes that OST was a difficult employee who treated others, not just Complainant, rudely. Affidavit of CAD at 4-5; Affidavit of ASAC1 at 2-3; Affidavit of ASAC2 at 2-3.
In order to establish that the Agency's proffered reason was a pretext for discrimination, Complainant asserts that OST treated her worse than she treated others. Affidavit of Complainant at 2. The record reveals that CAO believed that OST did not provide Complainant the same level of service as other employees. Affidavit of CAO at 4. However, CAO stated that OST "treated everyone rudely. She did not distinguish her treatment by people's race. . . . She was unhappy and looking for other work, and eventually left." CAO Affidavit at 4. We find that Complainant has failed to show that the Agency's explanation of OST's motivation is not worthy of credence. Accordingly, we find that Complainant has failed to show that the Agency's explanation is pretext for discrimination.
With regard to claim 5, we find the Agency articulated legitimate, nondiscriminatory reasons for its actions. Namely, CAO provided affidavit testimony that Complainant received an overall "successful" rating because she received a "successful" in three critical elements and an "excellent" rating in five of the critical elements. CAO Affidavit at 7. Complainant was given a "successful" rating in the element "Relating to others and Providing Professional Service" due to the tension and poor relationships in the office. Id. at 6. Complainant also received a "successful" rating in the element "Communicating Orally and in Writing." Id. at 7. Complainant received a "successful" rating in the "Achieving Results" element because CAO sometimes had to "give her assistance in timelines to accomplish projects" and "there were several instances where did not meet the timeline[s]." Id. at 8.
Complainant provided affidavit testimony that she believed that the lower ratings in these categories were unwarranted because she made "drastic improvements" in her performance. Complainant's Affidavit at 5. Complainant believed that she was unfairly rated due to her interactions with her colleagues in the office. Id. Complainant also stated that she did not believe that the "successful" ratings were justified. Id. at 6. We find, however, that Complainant has failed to show that CAO was motivated by discriminatory animus when she gave Complainant lower ratings. Complainant has not offered any evidence to demonstrate that the ratings were unwarranted or that she was rated differently due to her protected classes. Accordingly, we find Complainant failed to establish that she was discriminated against as alleged.
Similarly, with regard to claim 6, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, when the CAO, ASAC1 and ASAC2 learned that SEPM could not attend the conference, they reviewed the budget. Affidavit of CAO at 11; Affidavit of ASAC1 at 5; Affidavit of ASAC12 at 6-8. They determined that due to travel costs, they would only send a representative every other year and that Complainant had attended the conference the year prior. Id.
In order to show that the Agency's reasons were a pretext for discrimination, Complainant argues that at the time of CAO's, ASAC1's and ASAC2's decision regarding the NOBLE conference, "management became aware of [her EEO] contact and counseling" prior to their decision to cancel her attendance at the conference. Complainant's Affidavit at 4-8. We find that this alone is insufficient to show that the Agency was motivated by discriminatory animus. Accordingly, Complainant failed to show that the Agency's proffered reasons were a pretext for discrimination.
Insofar as Complainant contends that the incidents of which she complained constituted harassment based upon her membership in protected classes, the Commission finds that because she failed to refute the legitimate, nondiscriminatory reasons proffered by the Agency for its actions, she also failed to establish that such actions were taken on the basis of her membership in the protected classes. Accordingly, Complainant failed to establish that she was subjected to unlawful harassment. See Bennett v. Department of the Navy, EEOC Request No. 05980746 (September 19, 2000); Wolf v. United States Postal Service, EEOC Appeal No. 01961559 (July 23, 1998).
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 dismissal of claims 1, 2, and 3. The Commission also AFFIRM the AJ's decision issued without a hearing finding that Complainant was not discriminated or harassed as alleged. Finally, the Agency's is required to comply with the ORDER below.
ORDER
Within 15 days of the date on which this decision becomes final, an Agency EEO Counselor shall contact Complainant to determine whether she wishes to pursue her claim that she was discriminated against when she was removed from her position as Safety Chairperson on July 17, 2009. If Complainant wishes to proceed, the Agency shall resume processing of Complainant's allegations in accordance with 29 C.F.R. � 1614.105.
Proof of the Agency EEO Counselor's efforts to contact Complainant regarding this claim, and the result thereof, must be sent to the Compliance Officer, as referenced below.
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, 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 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
August 26, 2010
Date
1 We note that Complainant had already amended her complaint once to include a reprisal allegation. Nonetheless, it does appear that the proposed second amendment was not like or related to the existing claims. See Scher v. U.S. Postal Service, EEOC Request No. 05940702 (May 30, 1995); Calhoun v. U.S. Postal Service, EEOC Request No. 05891068 (Mar. 8, 1990) (a later claim or complaint is "like or related" to the original complaint if the later claim or complaint adds to or clarifies the original complaint and could have reasonably been expected to grow out of the original complaint during the investigation).
2 We remind the Agency that an aggrieved person timely contacts an EEO Counselor when she has initiated contact with any agency official logically connected with the EEO process, even if the individual is not an EEO Counselor, and by exhibiting intent to begin the EEO process. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 2-1, FN 1 (November 9, 1999); Kinan v. Dep't of Defense, EEOC Request No. 05990248 (May 6, 1999). The record reflects that Complainant contacted the AJ on August 27, 2009, alleging that she was removed as Safety Chairperson on July 17, 2009.
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0120101788
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120101788