Complainant,v.Ray Mabus, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Sep 1, 2015

01-2012-3268-0500 (E.E.O.C. Sep. 1, 2015)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Ray Mabus,
Secretary,
Department of the Navy,
Agency.

Appeal No. 0120123268

Hearing No. 480-2007-00511X

Agency No. 07322530025

DECISION
On August 27, 2012, Complainant filed an appeal from the Agency’s August 10, 2012 final
order concerning his 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 the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. § 621 et seq. We deem the appeal timely and accept it pursuant to 29
C.F.R. § 1614.405(a).1

For the following reasons, the Commission AFFIRMS the Agency’s
final order.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Electrician, WG-
2805-10, at the Agency’s Naval Shipyard and Intermediate Maintenance Facility (Shipyard)
located in Pearl Harbor, Hawaii. On July 7, 2006 and June 29, 2007, Complainant filed EEO
complaints alleging that the Agency discriminated against him on the bases of race (African-
American), color (black), age (54), and in reprisal for prior protected EEO activity when:

(1) he was not selected for temporary promotion to the position of Electrician Supervisor,
on or about April 13, 2006;
(2) he was denied nuclear training on or after February 20, 2006;

1 On November 5, 2014, the Commission issued a show cause notice to the Agency seeking
hearing-related documents that were missing from the complaint file. Subsequent to the notice,
the documents were received, and sanctions were not imposed.
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(3) he was not allowed to attend a ship systems training course in or about November 21,
2006;
(4) he was not selected for the position of Electrician Supervisor I, WS-2805-10, in the
Electrical Electronics and Calibration Shop (Code 950), on or about September 19,
2006;
(5) he was not selected for Electrician Supervisor I, WS-2805-10, in or about January
2007;
(6) he was not referred for consideration to the position of Quality Assurance Specialist,
GS-1910-12, in the Quality Assurance (QA) Department (Code 950) on or about
January 10, 2007;
(7) he was not referred for selection for the position of Electronics Technician, GS-0856-
11, on or about January 10, 2007;
(8) he was not selected for one of two positions as Electrician Leader, WL-2805-10, in the
Electrical Electronics and Calibration Shop (Code 950) on or about January 10, 2007;
(9) he was not referred for consideration for the position of Electrician, WG-2805-10, in
the Temporary Services Shop (Code 970) on or about March 29, 2007; and
(10) he was not detailed to the position of Shipboard Electrical Systems Tester, WG-2801-
12, in the Electrical Electronics and Calibration Shop (Code 950) on or about March
29, 2007.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing.
The Agency filed two separate motions for summary judgment, which Complainant opposed.
Summary judgment was granted as to Issues 1, 3, 4, 5, 6, 7, 9 and 10. On September 9,
2009, testimony and evidence was taken at a hearing with respect to Issues 2 and 8. On June
27, 2012, the AJ issued her decision finding that the Agency unlawfully retaliated against
Complainant with respect to the denial of nuclear training (Issue 2). The AJ also concluded
that Complainant failed to prove discrimination or retaliation with respect to all other issues.
The Agency subsequently issued a final order adopting the AJ’s decision.

FACTUAL BACKGROUND
At all relevant times, Complainant worked in Shop 51, which was part of the
Electrical/Electronics and Calibration Shop (Code 950). At the time, Shop 51 had
approximately 113 employees working in the electrician trade, including apprentices,
journeymen and supervisors. Of these, Complainant was the only African-American
employee. Complainant was also the only employee in Shop 51 with prior EEO activity. The
Senior Electrician Supervisor in Shop 51 (S2) was Complainant's second-level supervisor. The
Superintendent of Code 950 (S3) was Complainant’s third-line supervisor.

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ANALYSIS AND FINDINGS
Summary Judgment Decision

The Commission's regulations allow an AJ to issue a decision without a hearing when he or
she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of
fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the
non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip.
Corp.

, 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect
the outcome of the case.

The AJ notes in her decision that the parties had sufficient time to complete discovery and
concludes that the evidence in support of Issues 1, 3, 4, 5, 6, 7, 9 and 10 does not support a
claim of unlawful discrimination or retaliation. Accordingly, with respect to those issues, the
AJ granted the Agency’s motion for summary judgment. Our review of these claims is de
novo.

Issue 1 – Electronic Supervisor Position

The AJ concluded that Complainant could not make a prima facie case of discrimination or
retaliation with respect to the April 2006 selection of an Electronic Supervisor in Shop 51
because, without any nuclear training, he was not qualified to assume the position. The AJ
noted that it was undisputed that the position covered work on a nuclear submarine;
Complainant had never received training to work in nuclear positions; and he was not qualified
for the position.

Issue 3 – Ship Systems Training Course

The AJ concluded that Complainant could not make a prima facie showing of discrimination
when the Agency did not send him for the ship systems course in approximately November
2006, because the record is devoid of any evidence of race/color or age discrimination and
there is no evidence that any similarly situated individual was treated more favorably. The AJ
further concluded that the comparison employee (C1), already a supervisor, who did attend the
training, was not similarly situated to complainant. In addition, the AJ concluded that
Complainant failed to establish that the legitimate, nondiscriminatory reason for denying the
training (i.e., that the training was targeted for Ship Safety Officers, Combat Systems
Engineers, and Chief Test Engineers and not designed for lower-level employees in Shop 51
unless they were serving in Zone Manager positions) was a pretext or that the denial was
motivated by discriminatory/retaliatory animus.

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Issue 4 – Supervisor I Position

The AJ concluded that the record shows that the Agency articulated a legitimate, non-
discriminatory reason for its selection of an employee (C2) (i.e., he was familiar with the work
that needed to be done and was already a work leader in the section in which the Supervisor I
position was located).2

The AJ found no evidence of pretext in the record, but noted that the
record shows that C2 was preselected by S2 who was C2’s shop foreman and that the selecting
official (S3) merely rubber stamped the selection. The AJ also noted that there were no
interviews conducted, and no one other than S2 and S3 participated in the selection decision.
However, even though the record indicates that C2 had been pre-selected, the AJ concluded
that the record is devoid of evidence to refute the Agency’s assertion that C2 was well-
qualified for the position. In addition, the AJ concluded that while Complainant may have also
been qualified for the position, his qualifications were not demonstrably superior to those of
C2. Lastly, the AJ concluded that there was insufficient evidence in the record to establish that
S2 or S3 held discriminatory or retaliatory motives with respect to this selection.

Issue 5 – Supervisor Position

The AJ concluded that Complainant failed to present sufficient evidence of discrimination or
reprisal with respect to the nonselection for the Shop 51 Nuclear Facilities Supervisor position
because the record shows that he lacked nuclear expertise and therefore was not qualified for
the position. In addition, the AJ noted that while the record contains evidence that the selectee
for this position was also pre-selected, the evidence established that the selectee was well-
qualified and had already been working as a work leader in the nuclear side of Shop 51
directing people who worked under him at the time of his selection. In addition, the AJ found
no evidence in the record establishing discriminatory or retaliatory animus on the part of the
selecting official with respect to this selection.

Issue 6 – Quality Assurance Specialist Position

The AJ concluded that Complainant did not make out a prima facie case of discrimination or
reprisal with respect to the Quality Assurance Specialist Position because he did not present
evidence showing he was qualified for the position. The AJ noted that Complainant
additionally failed to present evidence that the individual in the Human Resources office who
made the decision not to refer Complainant for consideration knew his race, color, age or of
his prior EEO activity.

2 The record establishes that C2 had already been performing the duties of the position (albeit
informally) at the time of his selection.
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In addition, the AJ concluded that even assuming Complainant made out a prima facie case of
discrimination or retaliation, the Agency articulated nondiscriminatory reasons for its actions
(i.e., that Complainant did not have the specialized qualifications necessary to perform the
quality assurance duties, including comprehensive knowledge of the quality assurance
concepts, principles, and practices necessary to serve in the capacity of Project Quality
Engineer for an entire vessel repair project and to oversee the planning, execution and
certification of project work). The AJ noted that Complainant’s assertion that he had been a
QA Inspector in the Navy, had quality assurance training in Hawaii, and was certified to
inspect cableways wiring and associated diagrams is not sufficient to rebut the legitimate, non-
discriminatory explanation offered by the Agency and the record is devoid of
discriminatory/retaliatory animus.

Issue 7 – Electronics Technician Position

The AJ also concluded that Complainant did not make out a prima facie case of discrimination
or retaliation with respect to the Code 280 GS 11/12 Electronics Technician position because
he did not present evidence showing that he was qualified for the position. The AJ also
concluded that he failed to present evidence that the individual in the Human Resources
department who made the decision not to refer him for consideration knew his race, color, age
or of his prior EEO activity. However, even assuming Complainant made out a prima facie
case of discrimination or retaliation, the AJ noted that the Agency articulated non-
discriminatory reasons for its actions (i.e., that Complainant did not have the qualifications
necessary to perform the Electronics Technician duties because he lacked the necessary prior
experience as a GS-10 level technician diagnosing complex combat systems, and his prior
experience in the Air Force and private sector did not translate over to the requirements of this
particular job). The AJ further concluded that Complainant failed to present evidence of
pretext or discriminatory/retaliatory animus on the part of the responsible management official.

Issue 9 – WG-10 Electrician Position

The AJ concluded that Complainant failed to present a prima facie case of discrimination or
retaliation with respect to the Code 970 WG-10 Electrician position because he did not present
evidence showing that he was qualified for the position. The AJ further noted that
Complainant failed to present evidence that either the individual in Human Resources or the
subject matter expert who assisted her in making the decision not to refer him for
consideration, knew his race, color, age or of his prior EEO activity.

Even assuming Complainant had made a prima facie showing of discrimination or retaliation,
the AJ noted that the Agency articulated nondiscriminatory reasons for its actions (i.e., that
Complainant lacked the necessary prior experience in laying out, connecting and disconnecting
temporary electrical power lines from dock supply to a ship's power terminals and that a
subject matter expert determined that "electrical experience” does not qualify for work with
different voltage). Although Complainant generally argued that he should have been deemed
qualified for the job, the AJ concluded that he did not specifically rebut the Agency's non-
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discriminatory explanation and the record lacks any evidence of pretext or
discriminatory/retaliatory animus on the part of the responsible management officials.

Issue 10 - Detail

The AJ concluded that Complainant did not make out a prima facie case of discrimination with
respect to the detail position as a Tester in Code 950 because, in July 2007, Human Resources
personnel determined that Complainant was not qualified for the detail and did not forward his
name to the selecting official. The undisputed record also shows that only four names were
placed on the certificate of eligible candidates, including the two individuals selected for the
detail. In addition, the AJ noted that Complainant failed to refute the assertion of the Human
Resources specialists that they were not aware of his race/color, age or prior EEO activity at
the time they determined that he was not qualified for the position. Accordingly, the AJ
concluded that the record is devoid of sufficient evidence of discrimination or retaliation to
make out a case of unlawful discrimination or retaliation.

Decision after a Hearing

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. (November 9, 1999).
Issue 23

- Nuclear Training
Following a hearing on this issue, the AJ concluded that Complainant made out a prima facie
case of discrimination/retaliation because a similarly situated comparison employee (C3)
received the training. While the Agency articulated a legitimate, nondiscriminatory reason for
granting the training to C3 (i.e., C3 had been granted an exception because he had been a
nuclear electrician's mate in the Navy), the AJ concluded that the record supports the finding
that the Agency denied Complainant the right to receive the nuclear training because of his

3 The AJ found this claim to be timely raised and the Agency does not contest such finding on
appeal. Accordingly, we shall not address the timeliness issue herein.

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prior EEO complaint activity in 2004, and because he told S2 and/or the Nuclear Director
(ND2) that he was going to file an EEO complaint when they refused to allow him to enroll in
the nuclear classes in 2006.

In support of this conclusion, the AJ noted that the record establishes that in 2003,
Complainant asked S2’s predecessor, the general foreman (PS2), to refer him for nuclear
training. The AJ further noted that the documentary and testimonial record establishes that
PS2 referred Complainant to the nuclear director at the time (ND1), who told the EEO director
in Complainant’s 2004 EEO complaint that Shop 51 had enough nuclear qualified personnel to
support the then-present workload and that only apprentices who were already in the nuclear
training program would provide coverage for future workload. Nevertheless, shortly after
this, in 2005, C3, (a seasonal employee and not an apprentice) received nuclear training. The
AJ also noted that the undisputed record shows that two journeymen electricians who were not
apprentices also received nuclear training. In addition, the AJ noted that the undisputed record
establishes that there was a great demand for nuclear-trained personnel from 2003-2006
because of the tremendous amount of work that was going on in the Shipyard.

The AJ also concluded that S2 was not honest or straightforward on this issue and claimed to
be unaware of Complainant's requests for nuclear training, despite the preponderance of
evidence which establishes that he, in fact, was quite well aware of such requests. The record
also shows that ND2 became the nuclear director in Code 950 in June 2005. The AJ noted that
ND2 testified that during his tenure as Nuclear Director, the Shipyard did not offer nuclear
training to any Code 950 employee who was not already nuclear qualified or in the apprentice
program. The AJ further concluded that ND2 was not honest when he testified that he was not
aware that Complainant was seeking nuclear training and then gave the following testimony:

Q: Have you ever talked to [your predecessor, ND1] about [Complainant]?

A: [ND1] gave me a brief on yourself.

Q: On me?

A: Apparently he had a meeting with you.

Q: Yes, he did.

A: And after the meeting he came in and told me that, I guess, for whatever
reason you weren't interested in the nuclear program at all. So that's what he
told me and that was the end of that. I didn't have any more conversations
regarding you.

Hearing Transcript, pp. 140-141

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The AJ concluded that since both S2 and ND2 provided inconsistent and seemingly mendacious
testimony about their knowledge of Complainant's desire to receive nuclear training, as well as
his prior EEO activity, Complainant established retaliation in the denial of such training. The
AJ specifically concluded that: (1) PS2, S2 and ND2 knew that Complainant wanted nuclear
training starting as far back as 2003; (2) whether any employee had previous nuclear
experience or was in the apprentice program, he or she was required to take and pass three
nuclear classes, in order to be certified to work on/repair nuclear submarines; (3) management
could have granted Complainant’s request and sent him for nuclear training regardless of
where he was working at the time; and (4) had S2 recommended him for nuclear training, he
would have received the same three classes as every apprentice, and upon successful
completion would have been qualified in the nuclear field.

Therefore, the AJ concluded that the preponderance of evidence presented in the record and at
the hearing establishes that Complainant's managers/supervisors denied his request for nuclear
training because he had previously filed an EEO complaint (in 2004) and alerted management
in 2006 that he would do so again.

Issue 8 – Electrician Leader Positions

The AJ concluded that Complainant established a prima facie case of race/color and age
discrimination with respect to the two Electrician Leader positions on the USS Bremerton and
USS Olympia ERG projects, respectively, because the individuals selected (C4 and C5) were
not African-American and were significantly younger than Complainant. The AJ also noted
that the Agency articulated nondiscriminatory reasons for selecting C4 and C5, over
Complainant. For example, S2 testified that C5 had specific skills with respect to motor
generator in-place restoration and had already been working as a second-shift work leader in
the relevant field. S2 also testified that C4 came off “Short Repair Availability (SRA)” on the
Corpus Christi where he was assigned to assist one of the supervisors in the relevant field. S2
further testified that C4 had been doing similar work in the relevant field, so the
recommendation was made by his supervisor to make him a work leader. S2 further testified
that he forwarded the recommendation up to S3. In addition, the AJ noted that S2 testified that
he believed C4 was the best candidate because he was already doing that type of work,
(including underwater work removing sonar cables and restoring them) on several projects
already, including the Corpus Christi, his most recent assignment.

Additionally, the AJ noted that S2 testified that Complainant was not considered for either
position because he was not on that project or in that section, but instead was working in the
breaker controller section which S2 noted was limited to inspecting and refurbishing circuit
breakers. The AJ concluded that Complainant failed to present sufficient evidence that he was
demonstrably better qualified for the work leader positions than C4 or C5 and the record is
devoid of evidence of pretext or discriminatory/retaliatory animus.

The AJ noted that the evidence establishes that the manner in which the Agency conducted its
review for eligible candidates to fill temporary and permanent promotions to work leader and
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supervisor positions has the appearance of favoritism and pre-selection because even though
Human Resources personnel produced a certificate of eligible candidates, S3 selected the
individuals whose names were recommended by the lower level supervisors, without convening
an independent selection panel or conducting interviews. However, despite the seemingly
unfair pre-selection process, the AJ concluded that Complainant, nevertheless, failed to prove
his case because he was unable to rebut the Agency's various nondiscriminatory reasons for
failing to select him and or establish that in any instance the selecting or recommending official
was motivated by discriminatory or retaliatory animus.

Upon review of the documentary and testimonial evidence in the record, we find that the AJ’s
analysis and conclusions are supported by substantial evidence. On appeal, Complainant
asserts that the AJ decision erred with respect to: (1) the promotion of work leaders in January
2007 (Issue 8); (2) the denial of the ship system training course (Issue 3); and (3) the remedies
awarded.

With respect to the first argument, Complainant agrees that the Agency presented non-
discriminatory reasons as to why C4 and C5 were best qualified, but asserts that the reasons
given were based on dishonest statements made by S2. Complainant also asserts that when he
came to the Shipyard, he would supervise and train C4 and C5 in the troubleshooting and
repair of electrical circuits and systems. He also argues that C4 was selected because of the
underwater work he performed on one submarine, while he was leading and training
apprentices in underwater work for all of the submarines in the Pacific Fleet.

We find the assertions made by Complainant on appeal insufficient to show pretext. We note
that Complainant does not explain why he believes the statements made by S2 concerning the
qualifications of the two selectees were dishonest and does not contend that S2 embellished the
selectees' qualifications. In addition, there is insufficient evidence in the record to support
Complainant’s assertions about his own work experience. However, even assuming that
Complainant's description of his work experience is accurate, there is still a lack of evidence
that he was demonstrably more qualified for the position than the selectees or that there were
disparities in qualifications of such weight and significance that no reasonable person, in the
exercise of impartial judgment, could have chosen the candidates selected over the
Complainant.

With respect to the ship systems training course, Complainant asserts that the broadcast
message for the training course states that it was an abbreviated course not intended for Code
246 personnel. Complainant further asserts that S2 had sent other electricians to the course, at
different times, but determined that the training was meant for higher level, more experienced
employees and was not aware of Complainant’s extensive experience. Complainant further
asserts that statements made by S2 should be carefully considered since the AJ had already
concluded that he had given untruthful testimony in order to hide his retaliatory actions with
respect to training.

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We do not find Complainant’s arguments on appeal, sufficient to raise a genuine dispute of
material fact with respect to the ship systems training course. The undisputed record
establishes that S2 consulted with the training instructor and administrator (A1) who agreed
that the course was not meant for employees with Complainant’s background. The fact that the
broadcast message indicated that the course was open to “non-Code 246 personnel” does not
change the fact that A1 corroborated S2’s explanation for denying the request and that no other
similarly situated employee was treated more favorably. We note that while Complainant
claims that S2 sent other electricians to this course he fails to identify them. Lastly,
Complainant failed to identify evidence in the record that supports a finding of
discriminatory/retaliatory animus with respect to the ship systems training course.
Accordingly, we agree with AJ’s decision to grant summary judgment with respect to this
issue.

Complainant also asserts that he is entitled to a retroactive promotion to a supervisor position,
with back pay from July 2006 to June 30, 2011. We agree with the AJ and find insufficient
evidence to support such a remedy. In her decision, the AJ expressly noted: “[i]t is by no
means certain that, had Complainant received nuclear training, he would have been promoted
into any of the positions at issue herein. There were twenty or more persons on the [certificate
of eligible candidates] in several instances. Therefore, this Decision cannot order promotion as
a remedy, as it is too speculative.” We agree that it is too uncertain whether Complainant
would have been promoted had he received the nuclear training, not to mention what position
he would have been promoted into and when. Accordingly, the AJ’s denial of this remedy is
supported by substantial evidence in the record.

CONCLUSION
Accordingly, based on a thorough review of the record and the contentions on appeal, we
AFFIRM the Agency’s final order which adopts the AJ’s decision finding retaliation, in part.
The Agency is directed to comply with the Order below.

ORDER

Within one-hundred and twenty (120) days from the date this decision becomes final, the
Agency is ORDERED to take the following remedial action to the extent it has not yet done so:

1. The Agency shall calculate and pay Complainant the “special nuclear pay” it paid to
similarly situated employees who worked on nuclear ship and submarines for the
years 2004, 2005 and 2006. The Agency shall determine the appropriate amount of
back pay, with interest, and other benefits (if any) due Complainant, pursuant to 29
C.F.R. § 1614.501. 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 Complainant
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for the undisputed amount within 60 calendar days of the date the Agency
determines the amount it believes to be due. 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.”

2. The Agency shall pay Complainant $7,500 in compensatory damages;

3. The Agency shall provide training on retaliation for management employees at the
Naval Shipyard and Intermediate Maintenance Facility located in Pearl Harbor,
Hawaii. The training shall be conducted by a qualified trainer familiar with EEO
law. The training should include education regarding the fact that the employment
discrimination laws protect former employees from retaliatory employment
references; and

4. The Agency shall consider taking appropriate disciplinary action against the
responsible management officials. The Commission does not consider training to be
disciplinary action. The Agency shall report its decision to the Compliance Officer.
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 reason(s)
for its decision not to impose discipline. If any of the responsible management
officials have left the Agency’s employ, the Agency shall furnish documentation of
their departure date(s).

POSTING ORDER
The Agency is ordered to post at its Pearl Harbor Naval Shipyard and Intermediate
Maintenance Facility, 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.
(GO914)
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
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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).
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COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION

(S0610)
You have the right to file a civil action in an appropriate United States District Court within
ninety (90) calendar days from the date that you receive this decision. If you file a civil
action, you must name as the defendant in the complaint the person who is the official Agency
head or department head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court. “Agency” or “department”
means the national organization, and not the local office, facility or department in which you
work. If you file a request to reconsider and also file a civil action, filing a civil action will
terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).
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

FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
September 1, 2015