0120093702
01-07-2011
Zepour Parsanian, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Zepour Parsanian,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120093702
Hearing No. 480200700586X
Agency Nos. 4F913002507, 4F913009007
DECISION
On August 29, 2009, Complainant filed an appeal from the Agency's August
31, 2009, final order 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. The Commission deems the
appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the
following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
On February 22, 2007 and September 1, 2007, Complainant filed EEO
complaints alleging that the Agency discriminated against her on the bases
of race (Caucasian), national origin (Iranian-Armenian), sex (female),
disability (back injury), and reprisal for prior protected EEO activity
when:
Agency No. 4F913002507
1. On October 27, 2006, Complainant became aware that her supervisors
did not process the necessary forms for Complainant to receive credit
for sick and annual leave for an absence in April 2006;
2. On November 16, 2006, Complainant was charged leave without pay for
official time;
3. Complainant alleges that she was limited to working 34 hours per week
during the period May 2000 through December 2003.
4. On December 15, 2006, $124.17 had been deducted from Complainant's
pay for a shortage in her cash drawer that was ten years old;
5. Complainant learned that the Agency failed to provide form CA-16 to
the hospital emergency room for services Complainant received on November
25 and 26, 2005.
6. On April 21, 2007, Complainant was issued letters of warning;
Agency No. 4F913009007
7. Complainant was denied opportunities to work overtime from May 1,
2005 to September 2007;
8. Complainant was denied official time to attend a telephonic bench
decision in June 2007;
9. Complainant was not awarded vacant assignments posted in 2007;
10. On May 20, 2007, Complainant was denied training;
11. In June 2007, Complainant was issued a 7-day suspension;
12. In July 2007, Complainant was issued a 14-day suspension; and
13. Complainant was denied three bid positions in December 2005.1
BACKGROUND
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of her right to
request a hearing before an EEOC Administrative Judge (AJ). Complainant
timely requested a hearing. Over the complainant's objections, the
AJ assigned to the case partially granted the Agency's December 20,
2007, motion for summary judgment with respect to claims 1, 2, 3,
5, 7 and 8. The AJ denied summary judgment regarding the remaining
allegations of the complaints. The AJ held a hearing on May 8, 2009
and issued a decision on June 30, 2009 dismissing claims 4, 6, 9, 10,
11 and 12 for various procedural deficiencies. The AJ's decision found
discrimination concerning claim 13 that Complainant was denied three
bid positions in December 2005. The AJ awarded Complainant $1625.00
in non-pecuniary compensatory damages reduced by 75% from $6500.00 for
Complainant's pain and suffering as a result of Agency's discrimination.
The Agency subsequently issued a final order adopting the AJ's finding
that Complainant failed to prove that the Agency subjected her to
discrimination as alleged with respect to claims 1 through 12. The
Agency's final order further adopted the AJ's finding of discrimination
regarding claim 13.
At the time of events giving rise to this complaint, Complainant worked
as a full time Sales and Service Distribution Associate at the Agency's
Verdugo Viego Station in Glendale, California. The record indicates
that Complainant sustained an on-the-job injury in April 2000.
Claims 1, 2, 3, 5, 7 and 8
In claim 1, the record indicates that Complainant submitted a CA-1 form
to the Department of Labor, Office of Workers' Compensation Programs
(OWCP) requesting Continuation of Pay based on an on-the-job injury she
sustained on April 7, 2006. Complainant was off from work from April
8 to 15 2006 and did not request sick or annual leave for her absence.
Nevertheless, the record indicates that Complainant was paid for that
period and her sick and/or annual leave was reduced by eight hours of
annual leave and 32 hours of sick leave. On or about April 20, 2006,
Complainant informed the Agency that she wanted the annual leave and sick
leave used for April 8-18 2006 converted to Leave Without Pay (LWOP)
since she had a claim pending before the OWCP for that time period.
Accordingly, Complainant s supervisor submitted a request to the Agency's
payroll center to adjust Complainant's leave record. Consequently,
because Complainant had been paid $664.85 for the period she was off work
due to her injury, the Agency advised Complainant that she would have
to repay that money before her annual and sick leave would be restored.
Complainant was issued an invoice in the amount of $664.85 for "leave
buyback." The record indicates that sometime before October 23, 2006,
8 hours of annual leave and 32 hours of sick leave were credited to
Complainant leave record despite Complainant not having paid $664.85
to buy back the leave. Accordingly, the Agency issued Complainant a
Letter of Demand for the outstanding $664.85 and on October 25, 2006,
Complainant authorized the Agency to deduct $10.00 per pay period from
her salary to repay the outstanding debt. The AJ found that there was no
dispute regarding the Agency's non-discriminatory reason for its conduct
with respect to claim 1. Accordingly, the AJ granted summary judgment
concerning claim 1.
With respect to claim 2 regarding Complainant's November 16, 2006 request
for official time to act as a representative for another employee and
claim 8 regarding Complainant's request for official time to attend
a hearing in June 2007 on behalf of another employee, the AJ properly
found that Complainant did not have standing to raise these claims.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,
.106(a). The Commission's federal sector case precedent has long defined
an "aggrieved employee" as one who suffers a present harm or loss with
respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
Regarding claims 2 and 8, we find that these claims address the issue
of the purported denial of official time to represent identified agency
employees in EEO matters. To the extent that Complainant claims she
was denied official time to represent employees in EEO matters, the
Commission has held that the right to official time for a representative
flows from the complainant, and therefore, a denial of official time
for a representative is properly raised by a complainant, and not
the representative. See Lambert v. Social Security Administration,
EEOC Request No. 05970856 (October 8, 1998); Barrett v. Department of
Defense, EEOC Appeal No. 01A55067 (January 26, 2006). Complainant does
not have standing to raise the issue of being denied official time when
serving as an EEO representative for other employees. Therefore, we find
that the AJ properly dismissed claims 2 and 8 in accordance with EEOC
Regulation 29 C.F.R. � 1614.107(a)(1).
In claims 3 and 5, the AJ found that Complainant failed to contact
an EEO Counselor within 45 days of the alleged discriminatory events.
Specifically, the record indicates that Complainant contacted the EEO
Counselor on November 7, 2006 regarding claims 3 and 5. The record
further indicates that with respect to claim 3, Complainant challenges
being limited to working 34 hours per week during the period May 2000
through December 2003, however, Complainant did not seek EEO Counseling
until November 7, 2006; well beyond the limitation for timely EEO contact.
Concerning claim 5, the record indicates that Complainant contacted the
Agency's EEO Counselor regarding the Agency's failure to provide form
CA-16 to a hospital for emergency room services Complainant received in
November 2005 and for which Complainant was billed in January 2006.
The AJ found that Complainant's November 7, 2006 EEO Counselor
contact was untimely. Moreover, the AJ indicates that the issue of
whether Complainant was discriminated against when the Agency did not
provide a form CA-16 for treatment in November 2005 was addressed in the
Commission's decision in Pausanias v. United States Postal Service, EEOC
Appeal No. 0120080037 (May 28, 2008) at pp. 5-6 and 89- reconsideration
denied, EEOC Request No. 0520080656 (August 8, 2008). Accordingly,
claims 3 and 5 were properly dismissed by the AJ.
In claim 7, Complainant asserts that she was granted less overtime
than other employees at the Verdugo Viejo Station from May 2005 to
September 2007. Commission records indicate that on May 28, 2008 the
Commission's Office of Federal Operations issued a decision affirming the
AJ's August 10 2007 decision that Complainant had not been discriminated
against from May 1, 2005 to January 2007 when she was not allowed to work
up to 12 hours a day or 60 hours a week as straight time and overtime.
See Parsanian v. United States Postal Service, EEOC Appeal No. 0120080037
(May 28, 2008) at pp. 5-6 and 8-9- reconsideration denied, EEOC Request
No. 0520080656 (August 8, 2008). The AJ further found that Complainant
worked more overtime hours than any other employee in Complainant's
work unit. As such, the AJ found that Complainant failed to establish
a prima facie case of discrimination as alleged.
Finding of no discrimination (claims 4, 6, 9, 10, 11 and 12)
Concerning claim 4, the AJ found that the Agency articulated a legitimate,
non-discriminatory reason for collecting $124.17 from Complainant
in November 2006. Specifically, the AJ determined that through the
Agency's "shared services" offices, the Agency was notified that the
debt was still outstanding although it had initially been incurred by
Complainant in August 1996. The AJ concluded that Complainant failed to
establish that the Agency's reason for collecting the outstanding dept
was pretext for reprisal discrimination. In addition, at the hearing
in this matter, an Agency witness conceded that the evidence regarding
the debt and possible repayment did not support collecting the debt in
December 2006. The record indicates that consequently, the $124.17 was
returned to Complainant shortly after it was deducted.
Regarding claim 6, the record reflects that Complainant received the
letters of warning in April 21, 2007 for her inappropriate behavior at
the customer service window. Specifically, the record indicates that
in violation of Agency policy, Complainant had a bottle of water at her
window station and was observed drinking while working with a customer.
Complainant's supervisor further testified that Complainant failed to
ask three of five customers the required hazmat questions regarding the
packages they were mailing.
Complainant alleges in claim 9 that she was not awarded vacant assignments
posted in 2007. Evidence of record indicates, however, that Complainant
never submitted a bid for either of the vacant positions. Moreover,
Complainant did not indicate that anyone was selected for the three
positions at issue. Finally, the AJ found that Complainant failed to
proffer evidence to support her allegation that Complainant's protected
classes were factors in why Complainant was not placed in positions for
which she did not bid.
In claim 10, Complainant alleges that she was denied the opportunity to
attend training in May 2007. According to the Agency, at the time of
Complainant's request, Complainant's skills as a fully trained window
clerk were needed due to workplace demands. The Agency further testified
that there were no other employees available to work the window at
the time of Complainant's request. Complainant failed to present any
evidence that the workplace demands of the Agency resulted in the denial
of Complainant's training request.
Complainant challenges as discriminatory the Agency's issuance of 7-day
and 14- day suspensions in claims 11 and 12. In claim 11, the record
indicates that Complainant was suspended for 7 days after she failed to
follow the instructions of her supervisor to assist a customer at her
window rather than spending time attempting to change her password.
The AJ found credible the testimony of Complainant's supervisor that
Complainant spent nearly an hour attempting to change her password rather
than complying with the instructions of her supervisor to assist customers
at her window.
Regarding the 14-day suspension identified in claim 12, the Agency
testified that Complainant failed to work her full eight hour shift
after her supervisor denied her request for two hours of official
time and then two hours of emergency leave. In addition, the Agency
testified that Complainant's drawer had an additional $400 on July 2,
2007 and Complainant failed to report the excess cash in her possession
until after she had closed out the accounting of her drawer, made her
deposit and clocked out for the day.
Finding of discrimination
In claim 13, Complainant alleges that she was denied three bid positions
based on her disability. Following a hearing, the AJ concurred with
Complainant's allegation and found that the Agency discriminated against
Complainant in violation of Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
The record indicates that Complainant's doctor reported to the Agency
in September 2002 that Complainant had a diagnosis of Lumbar Spine
Musculoligamentous Injury with Discopathy and Lumbar Radiculopathy
and that Complainant may continue working at modified duties with
restrictions of no heavy lifting more than 25 pounds, and no pushing,
pulling, bending, stooping or climbing. Thereafter, on October 18,
2002, Complainant's condition improved and her doctor notified the
Agency that Complainant could continue working at modified duties with
restrictions of no heavy lifting more than 15 pounds. In December 2002,
Complainant's condition had further improved such that she could lift
up to 70 pounds with no other restrictions. After December 5, 2002,
Complainant was not asked to and did not submit any medical documents
to the Agency regarding her medical restrictions.
The AJ found that when Complainant was denied the bid positions because
the Agency believed that Complainant had permanent and stationary lifting
restrictions which would disqualify her from performing the bid positions.
The record indicates that in the December 12, 2005 notice to Complainant
that she was not being awarded the bids the Agency expressly stated that
this was the reason for Complainant's non-selection. An Agency official
confirmed this reason at the hearing in this matter. Complainant asserts
that in December 2005, she did not have an impairment which substantially
limited any major life activities. Rather, Complainant contends and
the record supports that she was discriminated against because she had
a record of or was regarded as having an impairment.
While the AJ found that Complainant did not have an impairment which
substantially limited any major life activities in December 2005, he
concluded that Complainant had a record of such an impairment. The AJ
found that Complainant's lifting and bending restrictions considered
together, were substantial limitations which existed for between one and
two years. The AJ further concluded that the Agency regarded Complainant
as having an impairment which substantially restricted her major life
activities. Testimony at the hearing established that Complainant's
supervisor was advised by the Agency's Injury Compensation office of
Complainant's most recent restrictions. The AJ found therefore, that
Complainant's supervisor understood that Complainant had a 15-pound
lifting restriction and, thus, regarded Complainant as an individual
with a disability.
There is no dispute in the record that Complainant was the senior
bidder for the three positions in question and that but for her
record of disability and being regarded as disabled, she would have
been awarded her choice of those positions. Further the AJ found that
Complainant established that she could perform the essential functions
of the positions. To the extent that Complainant had the limitation of
being restricted from lifting over 70 pounds, Complainant established
that any such limitation would not have prevented her from performing
any duties of the position. The record establishes that non-disabled
senior bidders were awarded the positions that they bid on, including
at least one of the three positions at issue here. Accordingly, the AJ
found that Complainant established that she was treated less favorably
than non-disabled individuals, and was denied the positions based solely
on being a disabled individual.
Award of Non-Pecuniary Compensatory Damages
The AJ found that Complainant provided some evidence regarding emotional
distress which she alleges resulted from the discrimination claimed
in her complaints. Complainant testified that she did not socialize
as much from 2005 until 2008, that she was unhappy and always crying.
Despite the fact that Complainant did not establish what portion of her
distress was caused by the denial of bids, she is still entitled to some
award for emotional distress.
In this matter, the AJ valued Complainant's emotional distress damages at
$6500. However, the AJ further found that because it is more likely than
not that Complainant's emotional distress was largely caused by on-going
actions, and only partly by the denial of the positions in December 2005,
he reduced the compensatory damages amount by 75%, to $1625.00.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that she has yet to receive any award
of fees in accordance with the Agency's final order in this matter
with respect to the finding of discrimination regarding claim 13.
Complainant offers no new contentions regarding the AJ's issuance of no
discrimination regarding claims 1 through 12 in the instant complaint.
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-party analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima facie
of discrimination by presenting facts that, if unexplained, reasonably
give rise to an inference of discrimination, i.e., that a prohibited
consideration was a factor in the adverse employment action. See
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate a
legitimate, nondiscriminatory reason for its actions. See Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency
has met its burden, the complainant bears the ultimate responsibility
to persuade the fact finder by a preponderance of the evidence that the
agency acted on the basis of a prohibited reason. See St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In the instant case, we find that the agency articulated legitimate,
nondiscriminatory reasons for its actions which complainant did not prove,
by a preponderance of the evidence, were a pretext for discrimination.
After a careful review of the record, the Commission finds that
the Agency's findings are supported by the evidenced of record.
Specifically, we find that the Agency demonstrated legitimate,
non-discriminatory reasons for its conduct in this matter with respect
to claims 1 through 12. The AJ properly found that Complainant failed
to show that the Agency's conduct was a pretext for discrimination based
on race, national origin, sex, disability and in reprisal for engaging
in protected EEO activity.
We further note that the Agency issued a final action on August 31,
2009 fully implementing the AJ"s finding of discrimination with respect
to claim 13 and the relief ordered by the AJ. The Agency does not
challenge the AJ's finding of disability discrimination and that finding
is therefore AFFIRMED.
Remedies
When discrimination is found, the agency must provide the complainant
with a remedy that constitutes full, make-whole relief to restore
her as nearly as possible to the position she would have occupied
absent the discrimination. See, e.g., Franks v. Bowman Transp. Co.,
424 U.S. 747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405,
418-19 (1975); Adesanya v. U.S. Postal Serv., EEOC Appeal No. 01933395
(July 21, 1994). Pursuant to section 102(a) of the Civil Rights Act of
1991, a complainant who establishes unlawful intentional discrimination
under either Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. � 2000e et seq. or Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et
seq. may receive compensatory damages for past and future pecuniary
losses (i.e., out-of-pocket expenses) and non-pecuniary losses (e.g.,
pain and suffering, mental anguish) as part of this "make whole" relief.
42 U.S.C. � 1981a(b)(3). In West v. Gibson, 527 U.S. 212 (1999), the
Supreme Court held that Congress afforded the Commission the authority
to award compensatory damages in the administrative process. For an
employer with more than 500 employees, such as the agency, the limit of
liability for future pecuniary and non-pecuniary damages is $300,000.
42 U.S.C. � 1981a(b)(3)
To receive an award of compensatory damages, a complainant must
demonstrate that he or she has been harmed as a result of the agency's
discriminatory action; the extent, nature, and severity of the harm; and
the duration or expected duration of the harm. Rivera v. Dep't of the
Navy, EEOC Appeal No. 01934157 (July 22, 1994), req. for reconsideration
denied, EEOC Request No. 05940927 (Dec. 11, 1995); Compensatory and
Punitive Damages Available Under Section 102 of the Civil Rights Act of
1991, EEOC Notice No. 915.002 (July 14, 1992), at 11-12, 14.
Compensatory damages may be awarded for the past pecuniary losses,
future pecuniary losses, and non-pecuniary losses which are directly or
proximately caused by the agency's discriminatory conduct. EEOC Notice
No. 915.002 at 8. Objective evidence of compensatory damages can include
statements from the complainant concerning his or her emotional pain or
suffering, inconvenience, mental anguish, loss of enjoyment of life,
injury to professional standing, injury to character or reputation,
injury to credit standing, loss of health, and any other nonpecuniary
losses that are incurred as a result of the discriminatory conduct.
Statements from others, including family members, friends, health
care providers, other counselors (including clergy) could address the
outward manifestations or physical consequences of emotional distress,
including sleeplessness, anxiety, stress, depression, marital strain,
humiliation, emotional distress, loss of self-esteem, excessive fatigue,
or a nervous breakdown. See Lawrence v. U.S. Postal Serv., EEOC Appeal
No. 01952288 (Apr. 18, 1996), citing Carle v. Dep't of the Navy, EEOC
Appeal No. 01922369 (Jan. 5, 1993).
Evidence from a health care provider or other expert is not a mandatory
prerequisite for recovery of compensatory damages for emotional harm.
A complainant's own testimony, along with the circumstances of a
particular case, can suffice to sustain his or her burden in this regard.
The more inherently degrading or humiliating the defendant's action is,
the more reasonable it is to infer that a person would suffer humiliation
or distress from that action. The absence of supporting evidence,
however, may affect the amount of damages appropriate in specific cases.
Lawrence, EEOC Appeal No. 01952288.
We further find that the AJ's award of $1625.00 reduced by 75% from
$6500 is appropriate to compensate Complainant for her emotional pain
and suffering resulting from the unlawful discrimination. We point
out that non-pecuniary compensatory damages are designed to remedy
a harm and not to punish the Agency for its discriminatory actions.
See Memphis Community School Dist. v. Stachura, 477 U.S. 299, 311-12
(1986) (stating that compensatory damages determination must be based
on the actual harm sustained and not the facts of the underlying case).
The Commission notes that this award is not "monstrously excessive"
standing alone, is not the product of passion or prejudice, and is
consistent with the amount awarded in similar cases. See Utt v. United
States Postal Service, EEOC Appeal No. 072007001 (March 26, 2009).
CONCLUSION
Based on a through review of the record and the contentions on appeal,
including those not specifically addressed herein, we affirm the
Agency's final order fully implementing the AJ's decision. The Agency
is instructed to comply with the Order below.
ORDER (D0610)
To the extent it has not already done so, the Agency is hereby ordered
to take the following remedial action:
1. The Agency shall pay to Complainant all pay and benefits (including
but not limited to, sick and annual leave, health and life insurance,
retirement contributions) she would have received had Complainant been
selected for the bid positions in December 2005. Any relief already
provided to Complainant through the pre-arbitration grievance settlement
regarding the denied bids, need not be provided again.
2. The Agency shall pay to Complainant $1625.00 in non-pecuniary
compensatory damages.
3. The Agency shall prominently post at the Verdugo Viejo Station a notice
of the finding of discrimination in conformity with 29 C.F.R. Part 1614.
The notice shall indicate that it is being posed pursuant to this
Decision.
POSTING ORDER (G0610)
The Agency is ordered to post at its Verdugo Viejo facility copies of
the attached notice. Copies of the notice, after being signed by the
Agency's duly authorized representative, shall be posted by the Agency
within thirty (30) calendar days of the date this decision becomes final,
and shall remain posted for sixty (60) consecutive days, in conspicuous
places, including all places where notices to employees are customarily
posted. The Agency shall take reasonable steps to ensure that said
notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (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 (R0610)
This is a decision requiring the Agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 filed your appeal with the
Commission. 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. 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
January 7, 2011
__________________
Date
1 For ease of reference, the Commission has re-numbered Complainant's
claims from both complaints as claims 1-13.
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2
0120093702
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120093702
13
0120093702