0120093640
08-04-2011
Edward Cadena, Complainant, v. Karen G. Mills, Administrator, Small Business Administration, Agency.
Edward Cadena,
Complainant,
v.
Karen G. Mills,
Administrator,
Small Business Administration,
Agency.
Appeal No. 0120093640
Hearing No. 541-2009-00020X
Agency No. 02-08-22
DECISION
On August 29, 2009, Complainant filed a timely appeal with this
Commission from the Agency's July 24, 2009 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. The Commission
accepts the appeal pursuant to 29 C.F.R. § 1614.405(a). For the
following reasons, the Commission AFFIRMS the Agency’s final order.
ISSUES PRESENTED
The issues presented are (1) whether the EEOC Administrative Judge’s
issuance of a decision without a hearing was appropriate, and (2) whether
Complainant established that the Agency discriminated against him on the
bases of national origin (Hispanic) and reprisal for engaging in prior
EEO activity.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Deputy District Director at the Agency’s District Office in
Albuquerque, New Mexico. Complainant’s immediate supervisor (S1)
was the District Director. Complainant’s second line supervisor was
the Regional Administrator (RA).
Letter of Reprimand
On May 30, 2007, Complainant submitted a document to S1 titled “[Agency]
Travel Authorization.” The document requested approval for reimbursement
of a government issued credit card based on travel dates from May 23
to 24, 2007. The sections titled “Supervisor’s Signature,”
and “Authorizing Official’s Signature,” dated May 22, 2007, were
absent signatures from S1, who was named in the boxes titled “Type:
Supervisor’s Name, Title.”
On July 12, 2007, S1 issued a notice of proposal for a five day suspension
to Complainant for failing to follow a supervisor’s instructions,
exhibiting a lack of candor, and the unauthorized travel and use of a
government issued credit card. In the notice section titled “Failure
to follow a supervisor’s instructions,” S1 explained that during
the week of May 14, 2007, Complainant initially discussed with S1 his
plans to attend a conference called the International Trade Lenders Forum
(ITC). During that conversation, S1 “. . . expressed to [Complainant
his] concerns about leaving the office without supervision since [he]
would be on official travel status and [Complainant] would be Acting
District Director.” The notice further explained that on May 22, 2007,
Complainant messaged S1 seeking authorization for his plans to attend the
ITC, to which S1 replied by “question[ing] whether [Complainant’s]
visit could be rescheduled for Tuesday and Wednesday of the following
week . . .” On May 23, 2007, the notice went on to specify, Complainant
called S1 and stated that he was “en route to Las Cruces.” S1 opined,
through the notice, that Complainant’s behavior exhibited failure to
follow instructions.
In the notice, S1 also expressed that Complainant exhibited a lack of
candor when he “approached . . . the Administrative Officer (AO),
to request that she process a travel authorization without [S1’s]
signature” and Complainant “explained that [he] was traveling
to Las Cruces to escort [his] father to a medical appointment on that
Friday.” Lastly, S1 concluded that Complainant’s conduct constituted
unauthorized use of a government credit card when Complainant submitted
a travel voucher that had “travel authorization . . . attached [that]
did not contain the appropriate supervisor’s signature.”
On July 28, 2007 Complainant issued a response to the notice of proposal
for suspension in which he stated that he “let [S1] know that he would
be handling the [ITC]. . . .” Complainant went on to state that on
May 23, 2007, he gave a copy of his travel authorization to AO, but upon
being reminded that she could not obligate funds without S1’s approval,
he called S1 and received verbal approval which he relayed to AO.
In the response, Complainant also asserted that “[S1] never once told
[Complainant] that he disapproved of this trip!” Complainant defended
his actions by stating that the trip was “strictly business related
and the allegations of this trip being for ‘personal business’ are
totally without merit!”
On January 8, 2008, RA issued a letter of reprimand (LOR) to Complainant.
Therein, RA noted that S1’s instruction for Complainant to reschedule
his travel plans “may not have been coherent.” However, RA went on
to clarify that the issuance of the LOR was related to the fact that
Complainant “failed to obtain the appropriate approval signature on
[his] travel authorization prior to completing [his] travel.” Under the
Agency’s chart labeled “Table of Recommended Disciplinary Action,”
the category for “Leaving the worksite without approval” lists a
LOR as the appropriate punishment for a first offense.
Non-Selection for District Director position
During the open application period from December 17, 2007 to January
3, 2008, the Agency accepted applications for the position of District
Director for the Agency’s Colorado District Office, advertised under
Vacancy Announcement Number 08D-50-MPP-KG. Of the 24 applicants, 13
qualified applicants were offered a telephone interview. Complainant was
among those qualified applicants interviewed by members of a selection
panel. Five management officials were involved in the selection process:
(a) the Associate Administrator of the Office of Field Operations as an
interview panelist (P1); (b) the Deputy Assistant Administrator of the
Office of Communications and Public Liaison as an interview panelist (P2);
(c) the District Director of the Utah District Office as an interview
panelist (P3); the District Director of the Oklahoma District Office as
an interview panelist (P4); and the Deputy Associate Administrator of
the Office of Field Operations as the selecting official (SO).
P1, P2, P3 and P4 conducted telephone interviews for the 13
candidates. The structured interview assessed six competencies: (1)
knowledge of government contracting and procedural requirements; (2)
knowledge of business development, management and technical assistance
skills; (3) knowledge and experience in developing and implementing
business strategies; (4) experience in developing and implementing
marketing strategies for campaigns; (5) demonstrated leadership; and (6)
significant and substantial management and supervisory experience. P1,
P2, P3 and P4 unanimously offered secondary interviews to three of the 13
candidates. Complainant was not offered a secondary interview. After the
secondary interview, the selection panel members unanimously recommended
the Selectee (Hispanic, no prior EEO activity) for the position. On March
10, 2008, SO selected the Selectee for the position. On March 13, 2008,
Complainant was notified that he was not selected for the position.
Formal Complaint and Administrative Judge’s Decision Without a Hearing
On March 26, 2008, Complainant filed a formal complaint alleging that
the Agency subjected him to discrimination and harassment on the bases
of national origin (Hispanic) and reprisal for prior EEO activity under
Title VII when:
1. On January 8, 2008, he received a LOR; and
2. On March 13, 2008, he was notified that he was not selected for the
District Director position for the Colorado District Office.
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 EEOC Administrative Judge (AJ). Complainant
timely requested a hearing. On May 6, 2009, the AJ issued a notice of
intent to issue a decision without a hearing. On May 26, Complainant
and the Agency submitted a joint request to enlarge the discovery period
in the event that the AJ decided not to issue a decision without a
hearing. The AJ denied the joint request on June 9, 2009 and instead
decided to issue a decision without a hearing finding for the Agency.
In her decision, the AJ concluded that Complainant failed to demonstrate
that the Agency unlawfully discriminated against him or harassed him
based on his national origin or in reprisal for his prior EEO activity.
With regard to claim 1, the AJ initially found that Complainant
failed to make out a prima facie case of discrimination. Next,
the AJ found that Complainant failed to show that the Agency’s
legitimate, non-discriminatory reasons for its actions were a pretext for
discrimination. Specifically, the AJ found that RA was “well within
his legitimate authority” to issue a LOR based on Complainant’s
failure to obtain the proper signatures on his travel authorization.
In addition, the AJ found that Complainant failed to show pretext by
demonstrating, among other things, that he or any other employee was
allowed to travel without obtaining express, written authorization.
Regarding claim 2, the AJ also found that Complainant failed to
establish a prima facie case of discrimination. Next, the AJ determined
that Complainant failed to show that the Agency’s legitimate,
non-discriminatory reasons for its actions were pretextual. In her
opinion, the AJ reasoned that the Agency met its burden of production
by offering testimony from members of the selecting panel that other
candidates outperformed Complainant during the initial telephonic
interview and, therefore, he was not invited to the second interview.
Based on the resumes in the record, the AJ found the panel members’
statements legitimate as they related that Selectee’s background in
public administration demonstrated his ability to work with varied
interest groups. The AJ also found legitimate the panel member’s
reliance on Selectee’s experience in executive leadership positions,
finance and procurement, and public relations when making their selection.
In light of the reasons proffered by management and Complainant’s
qualifications, the AJ found that the record lacked evidence to show that
Complainant’s qualifications were so plainly superior to the Selectee
as to demonstrate pretext.
With regard to Complainant’s harassment claim, the AJ concluded that the
claim failed because the record was devoid of evidence that the Agency’s
actions were motivated by discriminatory animus. Additionally, the
AJ found that there was no evidence that the Agency’s actions were
sufficiently severe or pervasive to rise to the level of actionable
harassment.
CONTENTIONS ON APPEAL
On appeal, Complainant, through his attorney, asserted that, pursuant
to claim 1, genuine issues of material fact existed regarding the
events prior to his leaving for the ITC, which were germane to the LOR.
Complainant argued that: (a) conversations between him and management
prior to his travel to Las Cruces and (b) the purpose of the trip were
in dispute. Specifically, Complainant argued that he alleged that he
placed a call to S1 to alert him that he spoke to AO to get authorization
for travel. Complainant argued that this allegation was contradicted
by management’s statement that AO, rather than Complainant, called
S1 to alert him of Complainant’s attempts to receive signatures
for unauthorized travel. Complainant also claimed that there were
contradictory statements where S1 claimed that he did not authorize
Complainant’s verbal request to attend the ITC and Complainant alleged
that he received authorization. In addition, Complainant argued that,
to show pretext, the AJ improperly demanded that he produce evidence that
RA’s belief that the LOR was the appropriate level of punishment was
somehow insincere. Complainant contended that the demand was improper
because questions of intent must be adjudicated at trial and the AJ
demanded such a showing but failed to allow for an extension of discovery
request. Complainant further asserted that by deciding that management
was “well within his legitimate managerial authority,” the AJ made
a credibility determination which was inappropriate for summary judgment.
Regarding claim 2, Complainant argued that the AJ mistakenly considered
the fact that Complainant’s prior EEO activity was “filed against
different Agency officials and preceded the letter of reprimand by some
13 months.” Complainant noted that eight months of the 13 month period
between his first EEO claim and the instant one were due to the Agency
delaying two months in issuing the proposed five day suspension, and then
another six months in deciding to issue the LOR. Complainant requested
that we reverse the decision of the AJ.
On appeal, the Agency argued that Complainant failed to establish a
prima facie case of discrimination in claim 1. In addition, the Agency
argued that it did not discriminate against Complainant by issuing him the
LOR because Complainant traveled without authorization and the proposed
five day suspension was mitigated to a LOR. The Agency further argued
that Complainant failed to establish any connection between the prior
EEO activity and the LOR. Finally, the Agency argued that Complainant
failed to establish that the Agency’s reasons for issuing the LOR
were a pretext for discrimination beyond his beliefs and feelings that
the Agency’s actions were discriminatory. With regard to claim 2,
the Agency argued that Complainant failed to make out a prima facie case
of discrimination. Assuming, arguendo, that Complainant had made out a
prima facie case of discrimination, the Agency argued that SO, P1, P2,
P3, and P4 offered legitimate, nondiscriminatory reasons for selecting
the Selectee over Complainant. With regard to Complainant’s harassment
claim, the Agency asserted that it was unsupported by the record because
Complainant failed to show that the Agency’s actions were motivated
by an unlawful factor. In addition, the Agency argued that Complainant
failed to provide any evidence demonstrating that the Agency’s actions
were sufficiently severe or pervasive to rise to the level of harassment.
ANALYSIS AND FINDINGS
Standard of Review
In rendering this appellate decision, we must scrutinize the AJ's legal
and factual conclusions, and the Agency's final order adopting them,
de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an
appeal from an Agency's final action shall be based on a de novo review
. . .”); see also Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 9, § VI.B. (Nov. 9, 1999)
(providing that an AJ’s “decision to issue a decision without
a hearing pursuant to [29 C.F.R. § 1614.109(g)] will be reviewed
de novo”). This essentially means that we should look at this case
with fresh eyes. In other words, we are free to accept (if accurate)
or reject (if erroneous) the AJ's, and Agency's, factual conclusions and
legal analysis - including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal
employment discrimination statute was violated. See id. at Ch. 9, §
VI.A. (explaining that the de novo standard of review “requires that
the Commission examine the record without regard to the factual and
legal determinations of the previous decision maker,” and that EEOC
“review the documents, statements, and testimony of record, including
any timely and relevant submissions of the parties, and . . . issue its
decision based on the Commission's own assessment of the record and its
interpretation of the law”).
Summary Judgment
We must first determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. 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). This regulation is patterned after the summary
judgment procedure set forth in Rule 56 of the Federal Rules of Civil
Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence
of the non-moving party must be believed at the summary judgment stage
and all justifiable inferences must be drawn in the non-moving party's
favor. Id. at 255. 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.
If a case can only be resolved by weighing conflicting evidence, issuing
a decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally,
an AJ should not rule in favor of one party without holding a hearing
unless he or she ensures that the party opposing the ruling is given
(1) ample notice of the proposal to issue a decision without a hearing,
(2) a comprehensive statement of the allegedly undisputed material facts,
(3) the opportunity to respond to such a statement, and (4) the chance
to engage in discovery before responding, if necessary. According to the
Supreme Court, Rule 56 itself precludes summary judgment “where the
[party opposing summary judgment] has not had the opportunity to discover
information that is essential to his opposition.” Anderson, 477 U.S. at
250. In the hearing context, this means that the administrative judge
must enable the parties to engage in the amount of discovery necessary to
properly respond to any motion for a decision without a hearing. Cf. 29
C.F.R. § 1614.109(g)(2) (suggesting that an AJ could order discovery,
if necessary, after receiving an opposition to a motion for a decision
without a hearing)..
As a preliminary matter, the Commission determines after a thorough
review of the record that the AJ properly acted within her discretion in
denying a request for a discovery extension by the Agency and Complainant.
The request was made in the event that the AJ decided to hold a hearing on
the matter. Since the AJ decided to issue a decision without a hearing,
her denial of the request was appropriate. Our regulations state that the
AJ is given wide latitude in directing the terms of EEOC administrative
hearings. See 29 C.F.R. § 1614.109; EEO MD-110, Ch. 7, § II.D.
Upon review of the record, the Commission determines that there are no
genuine issues of material fact, or any credibility issues which require
a hearing, and therefore the AJ’s issuance of a decision without a
hearing was appropriate. The record has been adequately developed,
Complainant was given notice of the AJ’s intent to issue a decision
without a hearing, he was given an opportunity to respond, he was given
a comprehensive statement of undisputed facts, and he had the opportunity
to engage in discovery. On appeal, Complainant asserted that a hearing is
necessary because genuine issues of material facts exist as to the reasons
for the proposal of a five day suspension which resulted in the issuance
of the LOR. However, we note that notwithstanding the facts surrounding
the five day suspension, the LOR was based on Complainant’s failure
to obtain signatures prior to the end of his travel. RA explicitly
made clear within the LOR that the letter was based on Complainant’s
failure to obtain signatures and not based on S1’s verbal approval
because RA considered S1’s directions to not be clear. We find that,
even assuming all of the facts in favor of Complainant, a reasonable
fact finder could not find in Complainant’s favor, as explained
below. Under these circumstances, we find that the AJ’s issuance of
a decision without a hearing was appropriate.
Disparate Treatment
The Commission notes that 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, he
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. See McDonnell Douglas, 411 U.S. at 802; Furnco
Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts
to the Agency to articulate a legitimate, nondiscriminatory reason for
its actions. See Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248,
253 (1981). Once the Agency has met its burden, Complainant bears the
ultimate responsibility to persuade the fact finder by a preponderance
of the evidence that the Agency acted on the basis of a prohibited
reason. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
Claim 1
Assuming, arguendo, that Complainant made out a prima facie case of
discrimination, we find that Complainant failed to establish that
RA’s reason for the issuance of the LOR was pretextual. Within the
LOR, RA explained that, notwithstanding incoherent statements from S1,
the LOR was being issued incident to the fact that Complainant “failed
to obtain appropriate approval signatures on [his] travel authorization
prior to completing [his] travel.” The RA also attested that he felt
that the issuance of the LOR was, “the appropriate level of disciplinary
action to correct [Complainant’s] behavior” and that in making the
decision he followed the guidelines outlined in the Agency’s policy.
The record reflects that the travel voucher submitted by Complainant,
requesting approval for reimbursement of funds on a government issued
credit card based on travel dates from May 23 to 24, 2007, was absent the
signatures of S1. The record reflects that under the Agency’s “Table
of Recommended Disciplinary Actions,” Complainant’s act of leaving
the worksite without prior authorization warranted a LOR. On appeal,
Complainant did not to offer any evidence to support a finding that this
reason for the issuance of the LOR was not appropriate disciplinary action
under the circumstances. Therefore, we find Complainant has failed to
show that the Agency’s actions were based on discrimination as alleged.
Claim 2
Assuming, arguendo, that Complainant made out a prima facie case of
discrimination, we find that Complainant failed to establish, by a
preponderance of the evidence, that the Agency’s reasons for his
non-selection was a pretext for discrimination. The record reflects that
Complainant was interviewed telephonically and the four panel members
unanimously agreed that Complainant did not do as well as the Selectee,
or the two other applicants invited back for a secondary interview.
Specifically, P1 attested that Complainant failed to “offer the Agency
anything new in terms of management experience.” In addition,
P2 attested that the Complainant’s responses lacked ambition
and “reflected current management activities. . . .” Further, P3
attested that Complainant’s responses during the interview “reflected
the current status quo, and did not offer any new insight or executive
direction.” Finally, P4 attested that Complainant’s answers in the
interview suggested that he “would maintain the status quo.”
In non-selection cases, a complainant may establish pretext by
showing that his qualifications are “plainly superior” to those of
the selectee. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981).
We find that Complainant has failed to make this showing. Complainant had
extensive experience in management pursuant to his tenure at the Agency,
as Deputy District Director and Acting District Director for 11 years.
The record reflects that the Selectee had a significantly more developed
background in a variety of public and private administrative and executive
positions. The Selectee had 14 years of senior management experience that
included positions of CEO and President in private businesses and serving
as the mayor of a town. Although Complainant’s years of management
experience within the Agency qualified him to apply for the position,
they did not necessarily make him more qualified than the Selectee.
The record reflects that Complainant’s 11 years of high level management
experience within the Agency may have hurt him in the interview as each
of the panel members articulated that they were looking for a Colorado
District Director with new insight.
Ultimately, the Agency has broad discretion to set policies and carry out
personnel decisions, and should not be second-guessed by the reviewing
authority absent evidence of unlawful motivation. See Burdine, 450
U.S. at 259; Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906
(Jan. 16, 1997). In addition, an employer has greater discretion when
filling management level positions. See Wrenn v. Gould, 808 F.2d 493,
502 (6th Cir. 1987). Accordingly, we find that Complainant failed
to show that the Agency’s reason for his Colorado District Director
non-selection was a pretext for discrimination on the bases of national
origin or prior EEO activity.
Harassment
To establish a claim of harassment a complainant must show that: (1)
they belong to a statutorily protected class; (2) they were subjected
to harassment in the form of unwelcome verbal or physical conduct
involving the protected class; (3) the harassment complained of was
based on their statutorily protected class; (4) the harassment affected
a term or condition of employment and/or had the purpose or effect of
unreasonably interfering with the work environment and/or creating an
intimidating, hostile, or offensive work environment; and (5) there
is a basis for imputing liability to the employer. See Henson v. City
of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must
have been “sufficiently severe or pervasive to alter the conditions of
[complainant's] employment and create an abusive working environment.”
Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's
conduct should be evaluated from the objective viewpoint of a reasonable
person in the victim's circumstances. Enforcement Guidance on Harris
v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994).
Regarding Complainant's contention that he was subjected to a hostile work
environment with respect to the matters set forth in his complaint, we
find, under the standards set forth in Harris v. Forklift Systems, Inc.,
510 U.S. 17 (1993), that Complainant's claim of hostile work environment
must fail. See EEOC Enforcement Guidance on Harris v. Forklift Systems,
Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of hostile
work environment is precluded by our determination that Complainant
failed to establish that any of the actions taken by the Agency were
motivated by discrimination based on national origin or reprisal.
See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21,
2000). Accordingly, we find that Complainant failed to establish that
the Agency subjected him to a hostile work environment on the bases of
national origin or reprisal.
CONCLUSION
After a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the
Agency’s final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this
case if the Complainant or the Agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party’s timely request for reconsideration. See 29
C.F.R. § 1614.405; Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
77960, Washington, DC 20013. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. § 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official Agency
head or department head, identifying that person by his or her full
name and official title. Failure to do so may result in the dismissal
of your case in court. “Agency” or “department” means the
national organization, and not the local office, facility or department
in which you work. If you file a request to reconsider and also file a
civil action, filing a civil action will terminate the administrative
processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time limits
as stated in the paragraph above (“Right to File A Civil Action”).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
____8/4/11______________
Date
2
01-2009-3640
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120093640