0720080009
06-10-2010
Christine Falvo, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Defense Finance & Accounting Service), Agency.
Christine Falvo,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(Defense Finance & Accounting Service),
Agency.
Appeal No. 0720080009
Hearing No. 160-AO-8772X
Agency Nos. DFAS-IN-RO-99-030,
DFAS-IN-RO-99-045
DECISION
Following its November 6, 2007 final action, the agency filed a
timely appeal. On appeal, the agency requests that the Commission
affirm its rejection of an EEOC Administrative Judge's (AJ) finding
of discrimination in violation of Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
The agency also requests that the Commission affirm its rejection of
the relief ordered by the AJ. Complainant has also filed an appeal from
the agency's decision which will be considered in this decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant was
seeking employment at the agency's work facility in Rome, New York.
On June 2, 1999, and August 4, 1999, complainant filed EEO complaints
wherein she claimed that she was discriminated against on the bases of
disability (asthma, degenerative disc disease, cervical sprain, pregnancy)
and reprisal for her husband's prior protected EEO activity under the
Rehabilitation Act. The claims accepted for investigation from these
complaints were as follows:1
1. Complainant was not selected for the position of GS-525-5, Accounting
Technician under Vacancy Announcement No. PH-9-0284.
2. The agency's Rome facility established an area of consideration
that denied complainant eligibility as an applicant for a GS-510-5/11
Accounting Technician position under Vacancy Announcement No. XI-0022-99.
3. Complainant was not selected for an accounting technician position,
GS-525-05, under Vacancy Announcement No. XI-0021-99Q, for Referral
lists 8 or 9.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an AJ. Complainant requested a hearing and the AJ
held a hearing on October 22, 2003, and issued a decision on September
28, 2004.
The AJ found that no disability discrimination occurred with regard to any
of the claims. The AJ also found that no reprisal occurred with regard
to claims 1 - 2 and no reprisal for the non-selection in Referral list 8
in claim 3. The AJ, however, found that complainant was discriminated
against on the basis of reprisal in claim 3 for the non-selection in
Referral list 9.
With respect to the finding of no disability discrimination, the AJ
found that complainant is not an individual with a disability. The AJ
stated that although complainant has physical impairments, the evidence
did not establish that these impairments substantially interfered with
a major life activity. The AJ further stated that complainant does not
have a record of having such an impairment and is not regarded as having
such an impairment. The AJ noted that being recognized as disabled by
the New York States Office of Vocational and Educational Services for
Individuals with Disabilities (VESID) does not automatically equate to
proving disability under the Rehabilitation Act.
As to the claims of reprisal where the AJ found no discrimination, the
AJ stated with regard to claim 1 that complainant was found qualified and
referred for selection with 108 other applicants. Complainant received a
rating of 80 from the Office of Personnel Management (OPM). All of the
selected applicants were current or temporary or term employees of the
agency's Rome facility and all had an OPM rating between 89 and 103.3.
Four of the 48 selectees were identified as having a disability.
The AJ noted that the Personnel Management Specialist testified that
the agency intended to convert as many employees as possible of those
who were currently working for them on a less than permanent basis to
a permanent basis through these selections.
As for claim 2, the AJ noted that the agency stated that complainant was
not eligible for the position because only current status applicants
or applicants with reinstatement eligibility or special appointment
eligibility and agency employees in the commuting area were eligible.
According to the agency, complainant's reinstatement eligibility
expired on August 18, 1998, and no selections were made from the vacancy
announcement. The agency stated that complainant had applied under the
announcement as a reinstatement eligible rather than as a VESID candidate.
The AJ found that complainant failed to prove that the agency's decision
not to make selections through this vacancy announcement was made to
avoid selecting her. The AJ noted that the decision to cancel the
announcement was not made by the Rome Office.
With regard to claim 3, the AJ noted that complainant was interviewed
under Referral list 8 and that the interview was conducted one day after
complainant's husband filed an informal complaint of discrimination.
Complainant was not recommended by the two panel members and no
reason was provided. Complainant was therefore not considered by
the selecting official. With respect to Referral list 9 (which was
subsequent to Referral list 8), this pertained to the same position as
Referral list 8, but in this instance complainant was not interviewed by
the panel. The Personnel Management specialist decided that complainant
would not be interviewed and thus she was not referred to the panel.
The AJ observed that the agency's explanation for not interviewing
complainant under Referral list 9 was its policy that once an applicant
is interviewed and not selected for a particular position that applicant
is not re-interviewed for the same position at a later time. The AJ found
that the Personnel Management Specialist's testimony on this issue was not
credible. The AJ noted that the Personnel Management Specialist was aware
of complainant's husband's EEO activity at the time of the non-referral.
The AJ cited an agency regulation which stated in pertinent part that:
"In the event that some of the certified candidates are not interviewed,
the selecting official should document the merit promotion record with the
reason for not interviewing a candidate. Acceptable reasons include: (1)
candidate is under the direct supervision of the selecting (nominating)
official, (2) candidate is unavailable for interview, or (3) candidate
was interviewed within the previous six months, by the same selecting
official, for a similar position . . ."
The AJ found that not referring complainant for an interview was in
direct conflict with this regulation. The AJ stated that complainant
was available to be interviewed, by a panel whose members and selecting
officials were different from the panel she interviewed with at a
prior date. The AJ noted that no notes were kept of the interviews
and therefore she assumed that complainant would have been selected,
as she was admittedly qualified and many positions were available.
In terms of relief, the AJ awarded complainant $6,000.00 in non-pecuniary,
compensatory damages. The AJ observed that complainant suffered stress,
frustration, embarrassment, and depression when she was not selected for
the position. Additionally, complainant claimed that the emotional strain
negatively affected her home life, necessitating four sessions of couples
therapy. Complainant was awarded two years of back pay in the amount of
$17,305.00, plus interest. Complainant was denied front pay as the AJ
deemed it too speculative that complainant would have been converted to
a full-time regular employee when the term of her temporary appointment
concluded. The AJ also denied complainant pecuniary damages as she
noted that no documentation in support of such damages was submitted.
The AJ awarded attorney's fees in the amount of $13,695.00. The AJ
noted that agency sought a reduction to half that amount to reflect
complainant's lack of success on the first two claims. The AJ reasoned
that no reduction was warranted given that the work performed by
complainant's attorney and his associate on the prevailing issue had a
common core of facts and related legal theories with the two issues in
which no discrimination occurred. Additionally, complainant was awarded
costs of $284.15. The agency was ordered to post a notice at the Rome
facility concerning the discrimination and the responsible management
officials at that facility were ordered to receive appropriate EEO
training.
The agency subsequently issued a final order stating that it would not
fully implement the AJ's decision.
On appeal, the agency contends that the AJ's finding of reprisal in claim
3 is not supported by substantial evidence in the record. The agency
maintains that the AJ ignored its "Temp policy" in finding that it did
not comply with the appropriate regulations when choosing not to send
complainant for an interview for Referral list 9. The agency stated
that it acted consistent with the Temp policy and that interviewing
complainant under Referral list 9 would have been a deviation from
the policy. The agency points out that the 99 other applicants on this
referral list who were not hired after being interviewed under a prior
referral list for the vacancy announcement were also not interviewed
again. The agency maintains that its adherence to a standard selection
procedure does not support an inference of pretext.
The agency challenges the AJ's finding that the decision not to send
complainant for an interview was in direct conflict with regulation.
According to the agency, the regulation at issue is no more than a
guidance offered to managers and supervisors involved in the selection
of new employees. The agency states that the guidance is entitled
"Instructions to Selecting Supervisors" and is included on the cover
page of each referral list. The agency denied that such instructions
were mandatory for every selection. The agency further argues that
neither the evidence in the record nor the hearing testimony support
the AJ's finding that complainant, as a VESID candidate, should have
been referred under the applicable regulations for an interview.
With respect to attorney's fees, the agency requests that should
discrimination be found, that the award of attorney's fees be reduced
by 66% to $4,519.35 to reflect complainant's lack of success as to the
other claims. The agency maintains that the claims were not closely
intertwined. The agency argues that the nonselections in claims 1 -
2 involve discrete incidents and different facts than those central to
claim 3.
On appeal, complainant contends that the AJ erred when she found no
reprisal with regard to Referral list 8. Complainant states that she
was listed as a group 3, five point preference eligible candidate for
Referral list 8. Complainant states that she was not selected even
though the requirements on the lists of candidates mention that a group 3
candidate must be selected before any non-preference eligible candidates
are selected. Complainant states that no evidence has been provided
regarding the qualifications and scoring of candidates, the selection
criteria, the ranking, or the selection decision. Complainant notes
that the selecting official did no investigation of the qualifications
of the individuals recommended by the panel. Complainant stated during
the investigation that she believed her educational credentials and
accounting experience rendered her a better candidate than many of
those selected. Complainant states that notes of the interviews and the
written recommendations of the panel were not preserved by the agency.
Also, complainant states that no documentation exists to indicate why
all the selected candidates were non-preference eligible candidates.
According to complainant, the agency was aware of her husband's protected
activity during the time that she sought employment at the Rome facility.
Complainant contends that the agency has not provided a legitimate,
nondiscriminatory reason for not selecting her.
Complainant maintains that the AJ's finding of reprisal with regard to
Referral list #9 is supported by substantial evidence. Complainant states
that no agency witness other than the Personnel Management Specialist was
aware of the unwritten Temp policy. Complainant states that the policy
was created by the Personnel Management Specialist, who was aware of
her husband's protected activity. Complainant notes that the selecting
officials for Referral list #9 testified that the Personnel Management
Specialist decided who would be interviewed. Complainant states that
no one who was not interviewed has been hired from a referral at the
Rome facility.
Complainant contends that her back pay award should extend beyond
two years. Complainant states that in the three years prior to her
application, every term appointment except one was converted to a
permanent position. Complainant maintains that given the near universal
conversion rate, it is not speculative to assume she would have been
converted to a permanent or term position absent a discriminatory reason.
Complainant requests back pay from the date of discrimination to the
date the damages award was issued with interest.
Complainant argues that the AJ erred in finding no disability
discrimination. According to complainant, she has a record of impairment
and/or was regarded as having such an impairment for purposes of the
Rehabilitation Act. Complainant states that VESID identified her as
eligible for selective placement as a disabled worker, and indicated
to the agency that she had some limitations. Complainant states that
the EEO Investigator documented that management inferred that they
perceived her to be disabled based on VESID referring her for employment
and selective placement. Complainant maintains that the agency's
inconsistent explanations regarding the processing of her applications
constitute persuasive evidence that the agency is seeking to hide its
discriminatory motivation. Complainant states that at first she was
told her application had been lost and subsequently she was informed
that was she was not eligible because she had incorrectly completed her
application.
With respect to attorney's fees, complainant contends that a reduction
should be denied since although the three nonselections were separate
incidents, they occurred close in time to each other, occurred in the
same workplace, had the same alleged discriminatory official, and share
a common core of events.
In response to complainant's appeal, the agency asserts that complainant
failed to demonstrate that she is substantially limited in a major life
activity due to her alleged physical impairments. With regard to the AJ's
finding of no reprisal as to Referral list 8, the agency states that the
two panel members and the selecting official were unaware of complainant's
husband's protected activity. The agency notes that the one official in
the process who was aware, the Personnel Management Specialist, included
complainant on the list of applicants to be interviewed. As for the
AJ's finding of reprisal, the agency asserts that it acted consistent
with the hiring policy applicable to all temporary appointments who had
previously been interviewed for the same temporary position under one
of the first eight referral lists.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he or she was subjected to adverse treatment by the agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
The retaliation provisions of the EEO statutes prohibit retaliation
against someone so closely related to or associated with a person who
exercises her statutory rights that it would discourage or prevent
the person from pursuing those rights. Weikle v. United States Postal
Service, EEOC Appeal No. 01A00398 (April 3, 2000). It would therefore be
unlawful for an agency to retaliate against an employee because his or her
spouse, who is also an employee, pursued the EEO complaint process. Id.
The Commission finds that the prior EEO activity of complainant's spouse
is a proper basis of discrimination under Title VII.
In analyzing a disparate treatment claim under the Rehabilitation Act,
where the agency denies that its decisions were motivated by complainant's
disability and there is no direct evidence of discrimination, we apply
the burden-shifting method of proof set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See Heyman v. Queens Village
Comm. for Mental Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68
(2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999).
Under this analysis, in order to establish a prima facie case, complainant
must demonstrate that: (1) she is an "individual with a disability"; (2)
she is "qualified" for the position held or desired; (3) she was subjected
to an adverse employment action; and (4) the circumstances surrounding
the adverse action give rise to an inference of discrimination.
Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001). The burden
of production then shifts to the agency to articulate a legitimate,
non-discriminatory reason for the adverse employment action. In order
to satisfy her burden of proof, complainant must then demonstrate by a
preponderance of the evidence that the agency's proffered reason is a
pretext for disability discrimination. Id.
We shall assume arguendo, that complainant is an individual with a
disability and established a prima facie case of disability and reprisal
discrimination. We do not decide whether complainant is a qualified
individual with a disability under the Rehabilitation Act.
Claims 1 and 2
The agency explained with regard to claim 1 that complainant was not
selected for the Accounting Technician position since she received a
rating of 80 from the OPM and all selected applicants were current
or temporary or term employees of the Rome facility and all had an
OPM rating between 89 and 103.3. The Personnel Management Specialist
stated that the agency intended to convert as many employees as possible
who were currently working for it on a less than permanent basis to a
permanent basis through these selections. As for claim 2, the agency
stated that no selections were made as the vacancy announcement was
canceled. The agency further noted that complainant was not eligible
for the position because only current status applicants or applicants
with reinstatement eligibility or special appointment eligibility and
agency employees in the commuting area were eligible. The agency stated
that complainant's reinstatement eligibility expired on August 18, 1998.
We find that the agency articulated legitimate, nondiscriminatory reasons
for its nonselection of complainant in both claims 1 and 2.
Upon review of the record, we find that complainant has not offered
persuasive evidence of pretext to support her position with regard to
claims 1 and 2. Further, the AJ's findings of no discrimination for
claims 1 and 2 are supported by substantial evidence.
Claim 3
With regard to the portion of claim 3 concerning Referral list 8,
complainant failed to establish a prima facie case of reprisal. The
record reveals that the two panel members who referred candidates for
selection and conducted the interviews and the selecting official were
unaware of complainant's husband's EEO activity. The AJ's finding on
this issue is supported by substantial evidence. As for the disability
claim concerning Referral list 8, the record offers no support that
complainant's disability was a factor in her nonselection. The panel
members testified that they asked the same questions of each person
interviewed and that they then rated the candidates after the interviews
were completed. The selecting official acknowledged that he basically
ratified the candidates referred to him by the panel as his method of
selection. There is no indication that complainant's nonselection was
attributable to her disability.
With regard to that portion of claim 3 involving Referral list 9,
complainant was not selected in part because she was not interviewed
for the position. The official who did not refer her for an interview
with the panel was the Personnel Management Specialist. The Personnel
Management Specialist claimed that the policy was that an applicant
who is interviewed and not selected for a particular position is not
re-interviewed for the same position at a later time. This unwritten
policy admittedly developed by the Personnel Management Specialist is
contrary to the guidance for the referral list that specifically stated
that, "If interviews are held, all of the certified candidates should be
interviewed whenever possible." One of the exceptions to the interview
expectation was a candidate who had been interviewed within the previous
six months, by the same selecting official, for a similar position.
With respect to Referral list 9, the two selecting officials were also
the panel members and neither of them was the selecting official for
Referral list 8, the referral under which complainant was interviewed.
The evidence is insufficient to establish that the Personnel Management
Specialist's motivation for not referring complainant for an interview
was an intent to discriminate on the basis of disability. However, with
regard to reprisal, the record reflects that the Personnel Management
Specialist was aware of complainant's husband's protected EEO activity
which was occurring during the period that complainant sought employment
with the agency. The record reveals that the Personnel Management
Specialist was interviewed during the investigation of complainant's
husband's EEO complaint. The AJ found that the Personnel Management
Specialist's testimony as to Referral list 9 was not credible based on
his failure to offer a plausible reason for not interviewing complainant.
We agree with the AJ's rationale for this credibility determination.
We find that the AJ's finding of reprisal with regard to Referral list
9 is supported by substantial evidence.
Remedies
Neither party has challenged the amount of compensatory damages awarded
by the AJ or the AJ's decision not to award front pay or pecuniary
damages. Therefore, we do not alter those findings.
With regard to complainant's entitlement to back pay, complainant claims
that she should have been awarded more than two years due to the fact that
it was virtually automatic that every term appointment was converted to
a permanent position. However, we agree with the AJ that two years of
back pay is appropriate given that complainant applied for a temporary
position that was not to exceed one year, but may have been extended for
one additional year. Therefore, we find that the award of $17,305.00
plus interest was appropriate.2
Complainant is entitled to attorney's fees as long as she has obtained
some relief on the merits of her claim. See Farrar v. Hobby, 506
U.S. 103, 112 (1992). "In short, a plaintiff 'prevails' when actual
relief on the merits of his claim materially alters the legal relationship
between the parties by modifying the defendant's behavior in a way that
directly benefits the plaintiff." The magnitude of the relief obtained
is not dispositive. The Commission has found that a complainant is a
prevailing party even in situations where only a finding of discrimination
and a posting was ordered. See McGinnis v. Department of Defense, EEOC
Request No. 05920150 (July 15, 1992). Accordingly, in light of the fact
that complainant obtained some relief on her complaint, we agree with the
AJ's finding that she is a prevailing party for attorney's fees purposes.
By federal regulation, the agency is required to award attorney's fees
for the successful processing of an EEO complaint in accordance with
existing case law and regulatory standards. EEOC Regulation 29 C.F.R. �
1614.501(e). To determine the proper amount of the fee, a lodestar
amount is reached by calculating the number of hours reasonably expended
by the attorney on the complaint multiplied by a reasonable hourly rate.
Blum v. Stenson, 465 U.S. 886 (1984); Hensley v. Eckerhart, 461 U.S. 424
(1983). The circumstances under which the lodestar may be adjusted
are strongly limited, and are set forth in EEO Management Directive 110
(November 9, 1999). A fee award may be reduced: in cases of limited
success; where the quality of representation was poor; the attorney's
conduct resulted in undue delay or obstruction of the process; or where
settlement likely could have been reached much earlier, but for the
attorney's conduct. Id. at p. 11-7. The party seeking to adjust the
lodestar, either up or down, has the burden of justifying the deviation.
Id. at p. 11-8.
The agency did not dispute the lodestar amount of $13,695.00, but
rather it contends that the award of $13,695.00 should be reduced
by 66% to reflect complainant's lack of success on all of her claims
other than the reprisal basis for claim 3. Each of the claims however
concern complainant not being selected for an Accounting Technician
position at the Rome facility. Complainant focused on the Personnel
Management Specialist as the primary discriminatory official in the
respective claims. Upon review of the respective claims, we find that the
issues that resulted in a finding of no discrimination are sufficiently
overlapping with the prevailing claim to justify the award of $13,695.00
issued by the AJ.
CONCLUSION
The agency's final action adopting the AJ's decision finding no
discrimination on the basis of disability for claims 1 - 3 and no
reprisal for claims 1 and 2 and that portion of claim 3 that concerns
Referral list 8 is AFFIRMED. The agency's final agency rejecting the
AJ's finding of reprisal for that portion of claim 3 involving Referral
list 9 is REVERSED. The agency shall comply with the Order herein which
slightly modifies the relief ordered by the AJ.
ORDER
The agency shall take the following remedial actions:
1. Within 30 days of the date this decision becomes final, the agency
shall pay complainant $13,695.00 in attorney's fees and $284.15 in
costs.
2. Within 30 days of the date this decision becomes final, the agency
shall pay complainant $6,000.00 in non-pecuniary, compensatory damages.
3. Within 30 days of the date this decision becomes final, the agency
shall pay complainant $17,305.00 plus interest in back pay.
4. Within 180 days of the date this decision becomes final, the agency
shall provide EEO training to the responsible agency officials focusing
on the agency's obligation to not commit reprisal.
5. Within 180 days of the date this decision becomes final, the agency
shall consider taking appropriate disciplinary action against the
responsible agency officials still employed by the agency. If the agency
decides to take disciplinary action, it shall identify the action taken.
If the agency decides not to take disciplinary action, it shall set
forth the reasons(s) for its decision not to impose discipline. If any
of the responsible agency officials have left the agency's employment,
the agency shall furnish documentation of their departure date(s).
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective actions have been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Rome, New York 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.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington,
DC 20013. The agency's report must contain supporting documentation,
and the agency must send a copy of all submissions to the complainant.
If the agency does not comply with the Commission's order, the complainant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The complainant also has the right to file a civil action
to enforce compliance with the Commission's order prior to or following
an administrative petition for enforcement. See 29 C.F.R. �� 1614.407,
1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled "Right to File A Civil
Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013. In the absence of a legible postmark, the request
to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0408)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action in
an appropriate United States District Court within ninety (90) calendar
days from the date that you receive this decision on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
If you file a civil action, you must name as the defendant in the
complaint the person who is the official agency head or department head,
identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. If you file
a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1008)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. �� 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time
limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 10, 2010
__________________
Date
1 Other bases were withdrawn and other claims were dismissed prior to
the hearing. Complainant does not object to the dismissal of those
claims and they are not at issue in this appeal.
2 Neither party has challenged the AJ's calculation of back pay for the
two-year period.
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0720080009
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington,
DC 20013
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0720080009