0120102755
08-20-2012
Wardelle McClendon, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Wardelle McClendon,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120102755
Agency Nos. 0705-200H-2006103261
0705-200H-2007101464
0705-200H-2007102945
0705-200H-2008100104
DECISION
Complainant timely appealed two Final Agency Decisions (FADs) concerning his equal employment opportunity (EEO) complaints alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C.
� 2000e et seq., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission accepts the appeals pursuant to 29 C.F.R. � 1614.405(a). The Commission will exercise its discretion, pursuant to 29 C.F.R.
� 1614.606, to consolidate and address Complainant's appeals in this decision. For the following reasons, the Commission AFFIRMS the Agency's two FADs.
ISSUES PRESENTED
The issues presented are: (1) whether Complainant was denied a reasonable accommodation of his claimed disability; (2) whether Complainant was subjected to disparate treatment and harassment as alleged; and (3) whether Complainant's request to be transferred to a lower-graded position constituted a constructive downgrade.
BACKGROUND
General Background
At the time of events giving rise to this complaint, Complainant worked as an EEO Investigator, GS-12, at the Agency's Administrative Office of Resolution Management (ORM), in Lyons, New Jersey. Report of Investigation (ROI), No. 02006103261, at 2. As an EEO investigator, Complainant's duties required him to complete investigations of EEO complaints. Each investigation was reviewed and evaluated by management.
On May 11, 2006, Complainant's first-level supervisor (S1) (female, Caucasian) issued Complainant a letter of admonishment. Id. at 5-7. This letter noted that Complainant had failed to complete a Pre-Investigation Planning Document (PIPD) prior to completing an investigation of an EEO complaint that he was assigned. Id. A completed PIPD would have allowed the Intake Specialist to provide guidance to Complainant in developing the investigation. This investigation reportedly required revision and was remanded for a supplemental investigation. Id. at 11. Another employee (female, African-American) also completed an investigation without a PIPD during fiscal year 2006, but was not disciplined. Id. at 9. On August 2, 2006, S1 gave Complainant a warning of unacceptable performance for his third quarter performance review. Id. at 21. S1 placed Complainant on a warning period for 60 days and held meetings with Complainant twice per week. Id. at 28-32. On October 6, 2006, during meeting with the Intake Specialist (IS-1), Complainant received a memorandum, which noted that he had improperly been assigned two more investigations than he should have been during the last quarter of FY 2006, due to an administrative error. Id. at 22. On October 10, 2006, S1 issued Complainant a memorandum entitled, "Successful Completion of Warning Period." Id. at 23. The memorandum informed Complainant that he was performing at the fully successful level. Id. The memorandum further informed Complainant that if he did not sustain his performance at the fully successful level, he would be placed on a Performance Improvement Plan (PIP). Id.
The record reflects that an Intake Specialist reviews every case investigative file and assigns a rating of Needs Improvement (NI), Fully Successful (FS), or Exceptional (EX) with respect to five categories listed on the evaluation form. Id. IS-1 gave Complainant an NI with regard to "survey of the general environment," and an NI concerning the redacting of the investigative case file. Id. at 6-7. In February 2007, the IS evaluated one investigation that Complainant submitted, using the standard EEO investigation evaluation form. ROI, No. 2007101464, at 6.
On February 26, 2007, Complainant submitted a request for reasonable accommodation to S1 and IS1. ROI, Nos. 2007102945 and 2008100104, Ex. C-3b, at 1. Therein, Complainant requested to be "assigned to a different field office of his choice." Id. Complainant's request further noted:
Because of my medical condition and the inability to communicate with Lyons management I request this change for health reasons to help alleviate the stress, fatigue, and anxiety.
Id.
On February 28, 2007, management requested more detailed information regarding his condition and how it related to the essential functions of his position. Id., Ex. C-3f. The Agency again requested medical documentation on March 20, 2007. Id., Ex. C-3g. On May 3, 2007, S1 denied Complainant's request, noting that Complainant's medical documentation was not sufficient to establish a need for accommodation. Id., Ex. C-3i.
On June 29, 2007, Complainant reported to S1 that an Intake Specialist (IS-2) had been cursing at him and accusing him of making errors in his investigations, which caused him stress affecting his disability. Id., Ex. B1, at 27-32. As a result, Complainant requested to be assigned to a different Intake Specialist away from IS-2 as a reasonable accommodation for his disability. Id. at 34.
Thereafter, on August 15, 2007, S1 issued Complainant a letter of counseling because Complainant reportedly had failed to complete investigations in a timely manner. Earlier, on January 23, 2007, S1 issued letters to other investigators concerning untimely investigations. Id., Ex. C-4c. Also, in March 2007, S1 had issued letters of counseling to three other investigators for untimely investigations. Id., Ex. C7. On August 27, 2007, Complainant sent an e-mail to S1 requesting to be downgraded to a lower position, which noted:
I am currently an EEO investigator GS-12 and wish to change to a Counselor GS-11. . . . I am asking for a voluntary downgrade due to the unnecessary stress that has caused personal problems.
Id., Ex. C-6f.
The Agency's EEO Specialist responded to Complainant's request via e-mail:
As a matter of record, you are currently performing at a satisfactory level in your position and management is not requiring or recommending this action. If you decide to continue to pursue your request, I strongly recommend that you consider the consequences of your decision . . . .
Id., Ex. C-6g.
In a memorandum dated September 21, 2007, to the Chief Operating Officer Complainant noted, "I am formally requesting a voluntary change to lower grade for personal reasons . . . . I take this action without any threat or coercion from any Department of Veterans Affairs official." Id., Ex. C-6h. On September 27, 2007, Complainant's request was approved, and he was downgraded to the GS-11 position.
Procedural History
On August 8, 2006, and February 12, 2007, Complainant contacted an EEO Counselor and thereafter filed EEO complaints on October 3, 2006, and April 5, 2007, respectively.1 Therein, Complainant alleged that the Agency subjected him to discrimination and harassment on the bases of race (African-American) and sex (male), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. on May 11, 2006, he was issued an admonishment;
2. beginning on May 11, 2006, management excessively scrutinized his work;
3. on August 2, 2006, he was provided with a warning notice of unacceptable performance and an improper third-quarter performance evaluation;
4. on October 6, 2006, he received a memorandum which confirmed that he had received excessive assignments;
5. on October 10, 2006, he received a memorandum which threatened to place him on a performance improvement plan (PIP); and
6. in February 2007, he was ordered to produce or complete and then make various changes to one particular case.
On September 17, 2007, and November 2, 2007, Complainant filed two additional EEO complaints.2 Therein, Complainant alleged that the Agency subjected him to discrimination and harassment on the bases of disability, and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
7. on May 8, 2007, management denied his request for a reasonable accommodation for his disability;
8. his work was excessively scrutinized, which is evident by an e-mail dated February 24, 2007, concerning redaction;
9. he received a letter of counseling dated August 15, 2007; and
10. his reassignment from a GS-12 to a GS-11 position was the result of a hostile work environment, which constituted as constructive downgrade.
At the conclusion of the investigations with respect to Agency Nos. 02006103261 and 2007101464, the Agency provided Complainant with a copy of the report of investigations and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing on March 6, 2007, with respect to Agency Nos. 02006103261 and 2007101464.
On March 10, 2008, the Agency completed its investigations with regard to Agency Nos. 2007102945 and 2008100104, and provided Complainant with copies. On April 10, 2008, the Agency issued its FAD for Nos. 2007102945 and 2008100104, and provided Complainant with appeal rights to the Merit Systems Protection Board (MSPB). Thereafter, an MSPB administrative judge (AJ) dismissed Complainant's appeal, finding that it did not have jurisdiction over Complainant's constructive downgrade claim because Complainant failed to show that the Agency coerced him into accepting the lower-graded position. Complainant then requested a hearing before an EEOC AJ. The AJ assigned to the case consolidated Agency Nos. 02006103261, 2007101464, 2007102945, and 2008100104 for a hearing. On August 18, 2009, Complainant withdrew his hearing request with respect to all four complaints. On May 19, 2010, the Agency reissued its FAD for Nos. 2007102945 and 2008100104, concluding that Complainant had failed to prove that the Agency subjected him to discrimination as alleged. Afterward, on June 8, 2010, the Agency issued a separate FAD for Nos. 02006103261 and 2007101464, which also concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
June 8, 2010, Final Agency Decision
With respect to Nos. 02006103261 and 2007101464, the Agency determined that it articulated legitimate, nondiscriminatory reasons for its actions. The Agency noted, with respect to claim 1, that Complainant received the May 11, 2006, letter of admonishment because he failed to follow procedures with regard to the investigation of one case by not submitting a PIPD to IS-1. The Agency noted that Complainant's investigation with respect to this case was poor, and the case had to be remanded for further investigation. With regard to claim 2, the Agency noted that Complainant failed to provide specific examples with respect to his claim that he was subjected to excessive scrutiny.
Regarding claim 3, the Agency noted that Complainant received a warning for unacceptable performance because he was suppose to complete at least six investigations per quarter, but he had only completed 14.5 investigations during the first three quarters. With respect to claim 4, the Agency noted that the October 6, 2006, memorandum notified Complainant that during the last quarter of fiscal year 2006, he was over-assigned two cases due to an administrate error. The Agency noted the memorandum stated that Complainant would not receive two assignments during the next quarter in order to adjust for the error. Regarding claim 5, the Agency noted that Complainant received the October 10, 2006, warning about a PIP because he had not previously met his performance standards. As for claim 6, the Agency noted that Complainant was untimely with respect to certain cases. The Agency also noted that Complainant failed to redact personal identifiers with regard to one case. The Agency found that the record contained no credible evidence of pretext. Lastly, with regard to harassment, the Agency found that none of the alleged incidents were connected to any of Complainant's protected bases.
May 19, 2010, Final Agency Decision
Regarding Nos. 2007102945 and 2008100104, the Agency again found that Complainant failed to establish that he was subjected to discrimination as alleged. The Agency initially dismissed claim 8 pursuant to 29 C.F.R. � 1614.107(a)(2) on the grounds of untimely EEO Counselor contact. The Agency found that the matter occurred on February 24, 2007, but Complainant did not contact an EEO counselor until June 7, 2007, which was beyond the 45-day limitation period. With respect to claim 7, the Agency found that Complainant failed to establish a prima facie case of disability discrimination because he did not establish that he was an individual with a disability within the meaning of the Rehabilitation Act. The Agency noted that Complainant failed to respond to requests for medical documentation regarding his condition. The Agency also noted that his requested accommodation was not reasonable. With regard to claim 9, the Agency found that it articulated legitimate, nondiscriminatory reasons for issuing Complainant the letter of counseling; namely, that Complainant was overdue on investigating cases. Regarding claim 10, the Agency found that Complainant voluntarily requested the downgrade. The Agency noted that it advised Complainant that his performance was considered satisfactory and there was no need for a downgrade.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the Agency improperly fragmented his claims with respect to his EEO complaints. Complainant also contends that a similarly-situated female investigator was treated more favorable that he was. Complainant contends that this female investigator did not receive discipline for failing to write a PIPD as he did. Complainant further contends that the Agency failed to produce the letter of counseling that he was issued by S1 on August 15, 2007. Complainant contends that this letter of counseling clearly shows that males were treated less favorably than female employees. Complainant contends that male employees in his office filed EEO claims on actions taken against them. Complainant also contends that prior to the filing of his EEO complaint he was rated as excellent. Complainant contends that management improperly told him that he was behind on his work when was not, and threatened him with a PIP. Complainant contends that investigators who also had their investigations remanded were not disciplined as he was. Complainant further contends that IS-2 was allowed to curse at him in an e-mail message. Complainant contends that IS-2 accused him of committing errors in one of his investigations. Complainant contends that he attempted to explain these errors to IS-2 over the telephone until she hung up on him by slamming the telephone. Complainant contends that IS-2 was difficult to work with. Complainant contends that he reported IS-2's behavior to the EEO Specialist and S1. Complainant contends that his request to be assigned to a different Intake Specialist away from IS-2 as a reasonable accommodation for his disability was denied. Complainant contends that the stress of working with IS-2 negatively affected his diabetic condition. Complainant contends that because he could not work with IS-2 due to her behavior, he was left with no other choice but to ask for a downgrade to a GS-11 position away from IS-2.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap 9, � VI.A. (Nov. 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
Reasonable Accommodation (claim 7)
Initially, we note that this case arose before January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008, which made a number of significant changes to the definition of disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. Because this matter occurred from 2006 through 2007, the Commission will use the analytical framework as it existed before the enactment of the ADA Amendments Act of 2008, to determine whether Complainant is an individual with a disability.
Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. See 29 C.F.R. � 1630.9. An employee is required to show a nexus between the disabling condition and the requested accommodation. See Hampton v. U.S. Postal Serv., EEOC Appeal No. 01986308 (July 31, 2002), (citing Wiggins v. U.S. Postal Serv., EEOC Appeal No. 01953715 (Apr. 22, 1997)); Brown v. U.S. Postal Serv., EEOC Appeal No. 01A42650 (Sep. 2, 2004). We assume, without so finding, that Complainant is a qualified individual with a disability pursuant to the Rehabilitation Act. Nonetheless, we find that Complainant has failed to establish that he was denied a reasonable accommodation for his claimed disability.
In particular, we find that Complainant has failed to establish a nexus between his diabetic condition, stress, and/or anxiety and his request that he be assigned to a different field office of his choice. Complainant has not shown that his requested accommodation of being assigned to a different field office was necessary to accommodate any of his asserted disabilities. We find that Complainant requested the accommodation for reasons unrelated to his asserted disabilities; rather, he did not want to work under S1, IS-2, and other management personnel at the Agency's ORM in Lyons, New Jersey. We note that Complainant seemingly seeks a stress-free environment without any conflicts between himself and other employees. We find that Complainant has not established that his requested accommodation was reasonable. See Alden v. Dep't of Veterans Affairs, EEOC Appeal No. 0120080620 (June 16, 2011) (finding that complainant's request seeking a stress-free environment was unreasonable). Moreover, we note that an employer does not have to provide an employee with a new supervisor as a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, at Q. 33. Therefore, we find that Complainant has failed to establish that he was denied reasonable accommodation.
Disparate Treatment (claims 1 through 6, and 9)
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). He 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. 23, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133. 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502. 519 (1993); Tx. 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).
We find that assuming, arguendo, that Complainant established a prima facie case of discrimination based on race, sex, disability, and reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions. With respect to claim 1, S1 explained that Complainant failed to complete and submit a PIPD for one case that he investigated. S1 explained that Complainant did not address some of the accepted claims in that investigation. ROI, No. 02006103261, at 10. With regard to claims 2 and 3, S1 explained that his production level of completed investigations was below the standard requirement. Id. at 27-28. S1 explained that Complainant was given a warning alerting him that he was behind in his investigative case production. Id. S1 explained that meetings were set up with Complainant twice a week for three months to help him with his production. Id. Regarding claim 4, S1 explained that Complainant was over assigned two extra cases during the last quarter of FY 2006 due to an administrative error. Id. at 22.
As for claim 5, the Human Resources (HR) Officer stated that when an employee is not performing, the supervisor has an option of giving that employee a performance warning for 60 days. Id. at 31-32. The HR Officer further stated that at the end of the 60-day warning period, if the employee does not bring his or her performance up, that employee would generally be warned that they could be placed on a PIP. Id. The HR Officer said the PIP warning is standard language issued to an employee who has successfully completed the warning period. Id. With respect to claim 6, IS-1 stated that Complainant was late sending her the file for review and failed to redact the file in accordance with established procedures. ROI, No. 2007101464, at 6-7. With regard to claim 9, S1 indicated that Complainant was issued a letter of counseling because he was not completing investigating his assigned cases in a timely manner. ROI, Nos. 2007102945 and 2008100104, Ex, B2, at 15-20.
Because the Agency has proffered legitimate, nondiscriminatory reasons for the alleged discriminatory events, Complainant now bears the burden of proving by a preponderance of the evidence that the Agency's articulated reasons were a pretext for discrimination. Complainant can do this by showing that the Agency's preferred explanation is unworthy of credence. Burdine, 450 U.S. at 256. In an attempt to show pretext, Complainant, among other things, contends that a female investigator did not receive discipline for failing to write a PIPD like he did. Complainant contends that management improperly told him that he was behind on his work when was not, and threatened him with a PIP. Complainant contends that investigators who also had their investigations remanded were not disciplined as he was.
Notwithstanding Complainant's contentions, we find no evidence that management's actions were motivated by discriminatory animus. Although a female investigator did not receive a letter of admonishment for failing to submit a PIPD, the record reflects that Complainant's investigation was remanded for lacking information while the female investigator's investigation was not. ROI, No. 02006103261, at 18. The record further reflects that another female investigator was earlier disciplined by management for failing to complete a PIPD as well. Id., Ex. B-8, at 6. Complainant also does not dispute that he was behind in his production for the third quarter. ROI, No. 02006103261, at 25. While Complainant was overly-assigned two cases, the record reflects that management did not rate him based on his case inventory, but based on the number of cases he completed. Id. at 28. Further, management told Complainant that they would assign him fewer cases in FY 2007 to compensate for the reported administrative error. ROI, Nos. 2007102945 and 2008100104, Ex. C4-b, at 2. Also, the record reflects that the PIP warning that Complainant received is standard language issued to employees who have finished the 60-day warning period. We further note that other employees also received counseling letters for failing to complete investigations in a timely manner. Id., Ex. C-7.
At all times, the ultimate burden of persuasion remains with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were not the real reasons and that the Agency acted on the basis of discriminatory animus. Complainant has failed to carry this burden. As Complainant chose to withdrawal his hearing request, the Commission does not have the benefit of an Administrative Judge's credibility determinations after a hearing; therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. Accordingly, the Commission finds that Complainant has failed to show that he was discriminated against as alleged.
Harassment
With respect to Complainant's contention that he was subjected to a hostile work environment, we find that 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 Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that these actions were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sep. 21, 2000). Moreover, assuming Complainant's allegations constitute a continuing violation, Complainant has not shown that the matters at issue here were sufficiently severe or pervasive to demonstrate that he was subjected to harassment. We note that Complainant alleged that IS-2 cursed at him and said he committed errors in his cases. We note that the Commission's regulations are not to be used as a "general civility code." Rather, they forbid "only behavior so objectively offensive as to alter the conditions of the victim's employment." Onacle v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). Therefore, we find that Complainant has failed to establish that he was subjected to a hostile work environment as alleged.3
Constructive Downgrade (Claim 10)
Complainant alleges that the alleged harassment forced him to request a lower paying GS-11 position. Generally a forced resignation (whether it results in a discharge or demotion) occurs when an employer deliberately renders an employee's working conditions so intolerable that the individual is forced to retire from his or her position. Constructive discharge only occurs when the Agency's actions were taken with the intention of forcing the employee to retire. Three elements must be proven to substantiate a claim of constructive discharge: 1) a reasonable person in Complainant's position would have found the working conditions intolerable; 2) the conduct causing the intolerable working conditions is an EEO violation; and 3) Complainant's resignation was caused by the intolerable working conditions. See Taylor v. Army and Air Force Exchange Service, EEOC Request No. 05900630 (July 20, 1990); see also Perricone v. U.S. Postal Serv., EEOC Request No. 05900135 (June 11, 1990).
As discussed above, Complainant has not shown that the Agency's actions were motivated by discriminatory animus. Also, as discussed above, Complainant's request for a downgrade was not caused by intolerable working conditions. Therefore, we find that Complainant has not established the necessary elements prove a discriminatory constructive demotion. We discern nothing in the present record to support a finding that Complainant has established that his voluntary request to be demoted to a GS-11 position constituted a constructive demotion/downgrade.
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 decisions finding no discrimination.
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
August 20, 2012
Date
1 The October 3, 2006, complaint pertains to Agency No. 02006103261, and the April 5, 2007, complaint pertains to Agency No. 2007101464.
2 The September 17, 2007, complaint pertains to Agency No. 2007102945, and the November 2, 2007, complaint pertains to Agency No. 2008100104.
3 We note that the Agency dismissed claim 8 pursuant to 29 C.F.R. � 1614.107(a)(2) on the grounds of untimely EEO Counselor contact. We find assuming, arguendo, that claim 8, together with the other timely claims, formed part of a continuing violation, such behavior was insufficiently severe to constitute harassment.
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0120102755
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120102755