0720140025
09-28-2015
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0720140025
Hearing No. 443-2011-00298X
Agency No. 1Y-520-0096-10
DECISION
Following its April 29, 2014 final order, the Agency filed a timely appeal which the Equal Employment Opportunity Commission (EEOC or Commission) accepts pursuant to 29 C.F.R. � 1614.405(a). 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk at the Agency's JT Weeker ISC Express Center facility in Chicago, Illinois.
The record indicated that Complainant has been diagnosed with an Adjustment Disorder since 2004, which causes episodes of psychosis, visual hallucinations, paranoia, depression, and anxiety. In 2008, Complainant experienced symptoms from her mental condition and requested a reassignment to Rockford, Illinois, which management denied.
Complainant indicated that she experienced attendance issues in 2009, and informed the Supervisor of Distribution Operations ("Supervisor") that the issues were related to her medical condition. As a result, management made some adjustments to Complainant's schedule. In April 2009, Complainant was issued a Letter of Warning due to the attendance concerns.
In November 2009, the Agency's Office of Inspector General (OIG) received information from the State of Illinois, Office of Inspector General (State IG) regarding suspicion that Complainant was defrauding the State. Specifically, the State IG advised the Agency that Complainant was suspected of altering 24 of her pay stubs from the Agency in order to receive increased child care benefits and food stamps from the State. Subsequently, Complainant admitted to the allegations, and the State decided not to criminally charge Complainant. Complainant had agreed to repay the State for any benefits improperly received.
In February 2010, management conducted an interview with Complainant regarding her conduct involving her pay stubs and the State. During this meeting, Complainant admitted to making the alterations so she could receive benefits, explaining that her children's father was delinquent in his child support payments and she needed the money.
On July 15, 2010, Complainant received written notification that she was being removed from Agency employment for "Improper Conduct" resulting from Complainant's conduct involving her pay stubs and the State. The removal decision was recommended by the Supervisor and the Plant Manager concurred with the removal action. Complainant was officially terminated on August 21, 2010.
Both the Supervisor and Plant Manager stated that they believed removal was justified because they no longer trusted Complainant, but they also conceded that her conduct had no direct impact on the Agency and did not impair her ability to perform the functions assigned to her.
On November 29, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability when, on July 15, 2010, Complainant was issued a Notice of Removal for Improper Conduct.
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 and the AJ held a hearing on February 23, 2012, and issued a decision on March 16, 2014.
In his decision, the AJ found that Complainant established her prima facie case of disability-based discrimination. The AJ determined that Complainant provided adequate evidence to show that she is a qualified individual with a disability. Further, the AJ found that the Agency managers involved in her removal were aware of her disability. The AJ specifically found that Complainant notified management of her condition during a number of discussions related to Complainant's attendance issues.
The AJ then held that Complainant provided evidence that other employees, without disabilities, engaged in comparable wrongful conduct, but were not terminated. In reaching this conclusion, the AJ turned to the conduct of five comparators. The AJ eliminated three of the comparators noting that one employee's conduct (supervisor who embezzled funds and was demoted) occurred more than ten years prior and the other two employees (convicted of driving while intoxicated) did not engage in financial misconduct. Therefore, the AJ focused on two comparators, CW1 and CW2. Both CW1 and CW2 engaged in financial wrongdoing. Specifically, they were charged in falsifying time cards to receive unwarranted pay from the Agency. The evidence indicates that CW1 and CW2 were charged with conspiring to submit 31 false clock rings for CW1, who was not present at work during this period. CW1 and CW2 were suspended for 14 days without pay and the Plant Manager was the concurring official. Based on these findings, the AJ determined that Complainant established a prima facie case of discrimination.
The AJ turned to the Agency to articulate legitimate, nondiscriminatory reason for its action. Agency witnesses testified that Complainant's employment was terminated she breached the trust relationship with the Agency which undermined the mission of the Agency. Finding that the Agency met its burden, the AJ looked to Complainant to establish that the Agency's reason was pretext.
The AJ noted that Complainant's misconduct was admitted and serious, but the penalty of removal was more severe than that given to similarly situated comparators. The AJ stated that the State was defrauded by Complainant's altering her pay stubs, but her actions did not directly impact the Agency as Complainant received no financial gain from the Agency itself as a result of her actions. CW1 and CW2 also engaged in financial fraud. However, CW1 and CW2 committed their acts of fraud against the Agency itself in the form of receiving unearned pay, but they were permitted to retain their employment. The AJ determined that Complainant engaged in conduct that was less damaging for the Agency as compared to CW1 and CW2, but received more harsh punishment. Based on the disparity in treatment between Complainant and CW1/CW2, the AJ found that the Agency issued a termination to the disabled employee and allowed the non-disabled employees to retain their jobs. Therefore, the AJ concluded that Complainant demonstrated that the Agency's reason was pretext for disability discrimination. Accordingly, the AJ found that the Agency subjected Complainant to discrimination in violation of the Rehabilitation Act.
The AJ then ordered relief for Complainant. The Agency was ordered to remove all references to Complainant's Notice of Removal from all employment records. The Agency shall reinstate Complainant to her former position at the facility or a mutually agreed upon location and provide Complainant 30 days to accept or decline the offer. The AJ also ordered the Agency to provide Complainant with training for three-months as a refresher upon her return to a position with the Agency. The Agency was to reduce the removal to an 18-month suspension without pay. The Agency was ordered to pay back pay to Complainant from August 21, 2010, excluding the 18-month suspension from her prior position. If Complainant declined the position, the back pay ended upon the date she declined the offer. Finally, the AJ ordered the Agency to pay Complainant $ 7,500 in non-pecuniary damages. The AJ also indicated that if the Agency appeals his decision, the Agency must comply with the interim relief regulation set forth at 29 C.F.R, � 1614.505.
The Agency subsequently issued a final order rejecting the AJ's finding that Complainant proved that the Agency subjected her to discrimination as alleged. On May 19, 2014, the Agency submitted its brief in support of the Agency. The Agency specifically argued that: 1) the AJ failed to make any credibility determinations when he concluded that management was aware of Complainant's disability; 2) the AJ erred in concluding that the Complainant established a prima facie case of discrimination; 3) the AJ erred by substituting his business judgment for that of the Agency's management; 4) the AJ erred in considering the settlement of the removal of CW1 and CW2; and 5) the AJ erred when he failed to address the comparators the Agency provided as part of the record. Therefore, the Agency asked that the Commission affirm its final action rejecting the AJ's decision.
Complainant responded to the appeal asking the Commission to dismiss the appeal. Complainant asserted that the Agency failed to comply with the interim relief regulation. In addition, Complainant requested that the Commission modify the AJ's award of compensatory damages to $115,000 in non-pecuniary damages and $ 18,810.76 in pecuniary damages.
ANALYSIS AND FINDINGS
Interim Relief
Complainant asserted that the Agency failed to provide her with interim relief as ordered by the AJ. As such, she requested that the Commission dismiss the appeal. The Agency responded to Complainant's claim asserting that on April 23, 2014, it offered Complainant a position at the facility as a Full Time Mail Processing Clerk. In addition, the Agency noted that there were ten other positions available for a full time mail processing clerk at the level 6 from which Complainant could choose. Complainant was asked to respond with her selection within 30 calendar days. The Agency provided two affidavits attesting to the fact that the Agency had drafted and mailed the offer to Complainant's known address. However, Complainant did not receive the offer until she received a copy of the Agency's brief in support of the instant appeal. Upon review, we find that the Agency has established that it mailed Complainant its offer of interim relief to the address she provided. If Complainant changed addresses, it was her responsibility to keep the Agency informed of her current address. Therefore, in accordance with the AJ's Order and the regulation found at 29 C.F.R. � 1614.505 on interim relief, we find that the Agency offered restoration to a position as a Full Time Mail Processing Clerk. As such, we deny Complainant's motion to dismiss the appeal.
Finding of Disability-Based Discrimination
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, at � VI.B. (Aug. 5, 2015).
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, she must first establish a prima facie case 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. 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. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
As an initial matter, we note that the AJ found that Complainant was a qualified individual with a disability and the Agency did not contest the AJ's finding. Therefore, we need not address this issue.
The Agency does argue that management was not aware of Complainant's disability. Complainant asserted at the hearing that she made the Supervisor and Plant Manager aware of her condition during their repeated discussions over the years about her request for reassignment to Rockford and her attendance issues. The Agency argued that Complainant's testimony conflicted with that of the Supervisor and the Plant Manager. Further, the Agency pointed to the fact that Complainant admitted to being a liar and a benefits cheat. The Agency indicated that the AJ failed to make any express credibility determinations and merely ignored evidence that conflicted with Complainant's version of the events. The Agency also claimed that the documents Complainant provided were never given to the management officials. As such, the Agency contends that Complainant never informed management of her disability and has not established her prima facie case.
In the AJ's decision, he found that Complainant made the Agency aware of her disability citing to her affidavit and testimony where she stated she made management aware of her condition. Complainant said that her medical condition limits her ability to work a full schedule and resulted in her attendance problems. Complainant stated that she informed the Supervisor of her condition when he reviewed her attendance record from 2005 to 2007/2008. Furthermore, Complainant indicated that she informed the Plant Manager of her disability when, in 2008, she requested a reassignment. She also asserted that she has provided medical documentation which is contained in her personnel file. The Supervisor and Plant Manager, however, denied knowing about Complainant's disability.
We find that a fair reading of the AJ's decision, issued after a live hearing where the AJ observed the testimony of Complainant, the Supervisor and the Plant Manager, makes it clear that the AJ found Complainant more credible than the Supervisor and the Plant Manager on this topic. We also note that the record contains documents Complainant provided to management regarding her medical condition in support of her Family Medical Leave Act leave requests. Such documentation bolsters the credibility of Complainant's testimony. Based on the investigation, hearing record, and the AJ's decision, we believe the AJ found Complainant to be more credible when he relied upon her evidence to establish that she informed management her medical condition. Based on the facts of this case at hand, we find no reason to disturb the AJ's specific finding that the responsible management officials had knowledge of her medical condition.
The Agency argues that the AJ erred in finding that CW1 and CW2 were treated more leniently than Complainant by the same management officials. The Agency points to the fact that Complainant, CW1 and CW2 were all initially issued removal notices for the financial fraud they committed. As such, the Agency asserted that Complainant had not shown that they were treated more favorably and argues that CW1 and CW2 had their removal actions reduced to 14 day suspensions through grievance settlements.
However, the evidence in this case show that while Complainant, CW1 and CW2 were all initially issued removal notice with the Plant Manager's approval, and all three filed grievances, the Plant Manager only agreed to settle CW1 And CW2's grievances by reducing the penalty to a 14-day suspension. The Plant Manager testified that the reason for the reduction in their punishment was due to their confessions to the improper conduct. Furthermore, the Plant Manager testified at the hearing "I agreed that, as long as they were honest about it at that point, I would issue them both removals and I would consider reducing the charges to 14 day." Hearing Transcript, at 123. In essence, the Plant Manager admitted that he never intended to follow through with the removal action for CW1 and CW2, but used the threat of removal to get the employees to confess to their misconduct. As such, we find that the fact that the disciplinary actions were reduced is significant to the case at hand and should be considered. Furthermore, the Plant Manager indicated his consideration of CW1 and CW2 being honest and coming forward with their confessions. Complainant was not given the same consideration despite the fact that she confessed to her financial misconduct promptly, unlike CW1 who initially refused to tell the Plant Manager who assisted her by punching in her time card. As such, we find that the record supports the AJ's determination that CW1 and CW2, who are not individuals with a disability, committed similar financial wrongdoings but received more favorable treatment than Complainant. Therefore, we conclude that the evidence of record fully supports the AJ's determination that Complainant established her prima facie case of disability-based discrimination.
The AJ then turned to the Agency to articulate a legitimate, nondiscriminatory reason for its action. The Agency asserted that Complainant engaged in very serious behavior, namely financial fraud. Due to Complainant's conduct, the Agency removed Complainant. We find that the Agency has met its burden.
Having found that the Agency has articulated a legitimate, nondiscriminatory reason for its removal action, Complainant must prove that the Agency's proffered reason for her removal was pretext for discrimination. The AJ found that Complainant's financial wrongdoing did not directly impact the Agency as compared to the actions of CW1 and CW2. Furthermore the AJ determined that Complainant demonstrated that her behavior did not impair her ability to perform the duties assigned to her at the Agency. The AJ determined that, in the end, management could not explain why Complainant was removed and CW1 and CW2 were not. The AJ noted that pretext can be demonstrated by "showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the [Agency's] proffered legitimate, reasons for its action that a reasonable fact finder could rationally find them unworthy of credence." Citing Morgan v. Hilri, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997). The AJ concluded that such was the case here, and concluded that it was more likely than not that Complainant's disability was a factor in the decision to remove her rather than imposing lesser discipline as had been imposed on CW1 and CW2..
The Agency argued that the AJ, in finding pretext, substituted his own judgment about the seriousness of the consequences for Complainant's breach of trust in finding that her behavior did not affect the workplace. The Plant Manager testified that if Complainant was willing to change documents to get benefits from the State, he believed she posed a risk to the mail. The Plant Manager averred that Complainant's behavior was worse than CW1 and CW2 while the Agency asserted that the AJ concluded the opposite. However, we are not persuaded by the Agency's arguments. The AJ determined that the Plant Manager was inconsistent in his reasons for issuing the Notice of Removal to Complainant as compared to CW1 and CW2, and that the evidence simply did not support some of his stated reasons. Therefore, we find that the record supports the AJ's decision finding that Complainant established that the Agency's reason was pretext for disability-based discrimination.
Remedies
As a remedy for discrimination, the Agency must provide Complainant with 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 Transport. Co., 424 U.S. 747, 764 (1976); Albermarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975); Adesanya v. U.S. Postal Serv., EEOC Appeal No. 01933395 (July 21, 1994) As such, we find that Complainant should be provided with an offer of reinstatement, a back pay award, and removal of all references to the removal action from her personnel records. We note that the AJ, without explanation, reduced the removal action to an 18-month suspension. We do not find any evidentiary or legal support for this order and reverse it. Therefore, Complainant shall receive a backpay award without consideration of such a suspension.
We now turn to the AJ's award of compensatory damages. Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant who establishes her claim of unlawful discrimination may receive, in addition to equitable remedies, 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). 42 U.S. C. � 1981a(b)(3). 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. Id.
The particulars of what relief may be awarded, and what proof is necessary to obtain that relief, are set forth in detail in EEOC Notice No. 915.002, Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991 (July 14, 1992). Briefly stated, the complainant must submit evidence to show that the agency's discriminatory conduct directly or proximately caused the losses for which damages are sought. Id. at 11-12, 14; Rivera v. Dep't of the Navy, EEOC Appeal No. 01934157 (July 22, 1994). The amount awarded should reflect the extent to which the agency's discriminatory action directly or proximately caused harm to the complainant and the extent to which other factors may have played a part. EEOC Notice No. N 915.002 at 11-12. The amount of non-pecuniary damages should also reflect the nature and severity of the harm to the complainant, and the duration or expected duration of the harm. Id. at 14.
In Carle v. Dep't of the Navy, the Commission explained that "objective evidence" of non-pecuniary damages could include a statement by the complainant explaining how he or she was affected by the discrimination. EEOC Appeal No. 01922369 (Jan. 5, 1993). Statements from others, including family members, friends, and health care providers could address the outward manifestations of the impact of the discrimination on the complainant. Id. Complainant could also submit documentation of medical or psychiatric treatment related to the effects of the discrimination. Id. Non-pecuniary damages must be limited to the sums necessary to compensate the injured party for the actual harm and should take into account the severity of the harm and the length of the time the injured party has suffered from the harm. Carpenter v. Dep't of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995).
The AJ awarded Complainant $7,500 in non-pecuniary compensatory damages. In response to the Agency's appeal, Complainant contends that she has provided sufficient evidence to support an increase in the award of compensatory damages to $115,000 in non-pecuniary damages and $18,810.76.
The AJ found that Complainant testified that she experienced depression, anxiety, chest pains, lack of concentration, crying spells, headaches, fatigue, sleeplessness, loss of appetite, loss of enjoyment of life, lost of trust in people, loss of interest in personal care, impaired relationships, heightened fear/paranoia, humiliation and embarrassment. However, the AJ determined that Complainant provided little evidence beyond her own testimony to support her claim for damages. Further, the AJ found that there were other factors that contributed to Complainant's described condition beyond the Agency's actions. Complainant did not challenge the AJ's determinations and merely argued that her harm matched higher awards issued by the Commission. Based on the foregoing, we find that the amount awarded is supported by substantial evidence in record and is consistent with Commission precedent. See Miller v. U.S. Postal Serv., EEOC Appeal No. 01956109 (Jan. 23, 1998) ($7,500.00 in non-pecuniary damages where the complainant produced scant evidence to support his claim); Butler v. Dep't. of Agric., EEOC Appeal No. 01971729 (April 15, 1999) ($7,500 in non-pecuniary damages based on complainant's testimony regarding his emotional distress). Therefore, we find that the record supported the AJ's decision regarding non-pecuniary damages. To the extent Complainant requested pecuniary damages on appeal, we find that Complainant's arguments alone do not support her claim for $ 18,810.76 in pecuniary damages.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERESE the Agency's final action and REMAND the matter for further action in accordance with the ORDER below.
ORDER
The Agency is ordered to take the following remedial action:
1. The Agency shall offer Complainant reinstatement to her former position, or a substantially equivalent one, at a mutually agreeable location within 30 calendar days of the date this decision is final. The offer shall be sent to Complainant by certified mail with a return receipt. Complainant will have 30 calendar days from receipt to respond to the Agency's offer. Complainant shall be provided with a three-month training/refresher period upon her return to employment.
2. The Agency shall remove all references to the Notice of Removal from Complainant's employment records.
3. The Agency shall determine the appropriate amount of back pay, with interest, and other benefits due Complainant from the effective date of her removal to the date she begins her reinstatement or the date Complainant rejects the Agency's offer for reinstatement, pursuant to 29 C.F.R. � 1614.501, no later than sixty (60) calendar days after the date this decision becomes final. The Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to the Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. The Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision.
4. The Agency shall provide Complainant with her award of $7,500 in compensatory damages within 60 days of the date this decision becomes final.
5. The Agency is directed to conduct EEO training for the Plant Manager and the Supervisor who was found to have violated the Rehabilitation Act.
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 of the Agency's calculation of backpay and other benefits due Complainant, including evidence that the corrective action has been implemented.
INTERIM RELIEF (F0610)
When the Agency requests reconsideration and the case involves a finding of discrimination regarding a removal, separation, or suspension continuing beyond the date of the request for reconsideration, and when the decision orders retroactive restoration, the Agency shall comply with the decision to the extent of the temporary or conditional restoration of the Complainant to duty status in the position specified by the Commission, pending the outcome of the Agency request for reconsideration. See 29 C.F.R. � 1614.502(b).
The Agency shall notify the Commission and the Complainant in writing at the same time it requests reconsideration that the relief it provides is temporary or conditional and, if applicable, that it will delay the payment of any amounts owed but will pay interest from the date of the original appellate decision until payment is made. Failure of the Agency to provide notification will result in the dismissal of the Agency's request. See 29 C.F.R. � 1614.502(b)(3).
POSTING ORDER (G0914)
The Agency is ordered to post at its Chicago International Military Service Center (the former JT Weeker ISC Express Center), Chicago, Illinois, copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 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 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 (M0815)
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 Chap. 9 � VII.B (Aug. 5, 2015). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. H
Carlton M. Hadden, Director
Office of Federal Operations
September 28, 2015
__________________
Date
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