0120112943
11-07-2011
George White, Complainant, v. Mike Donley, Secretary, Department of the Air Force, Agency.
George White,
Complainant,
v.
Mike Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120112943
Hearing No. 420-2010-00238X
Agency No. 7K0J09006
DECISION
On May 14, 2011, Complainant filed an appeal from the Agency’s April
13, 2011, 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 deems the appeal timely and accepts it
pursuant to 29 C.F.R. § 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Laborer at the Agency’s lodging facility in Tyndall Air Force
Base, Florida.
On March 23, 2009, Complainant filed an EEO complaint alleging that the
Agency discriminated against him on the bases of race (African-American),
sex (male), religion (Pentecostal), and reprisal for prior protected
EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. On October 28, 2008, his performance appraisal was lowered and he
was denied a performance award;
2. In November 2008, Management failed to provide mandatory performance
feedback regarding a charge of absence without official leave (AWOL)
for annual leave previously approved;
3. On October 31, 2008, Complainant was paid for his annual leave and
his supervisor (Supervisor) falsified his leave form;
4. On or about November 4, 12, and 18, 2008, the Supervisor made entries
on his “AF Form 971”;
5. On November 22, 2008, Complainant’s request for religious
accommodation was denied by his Second Line Supervisor. Complainant
indicated that he requested not to be assigned to work weekends so that
he could perform his ministerial duties; and
6. In January 2009, Complainant was constructively discharged.
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. Over the complainant's objections, the AJ
assigned to the case granted the Agency’s December 1, 2009, motion for
a decision without a hearing and issued a decision without a hearing on
March 3, 2011.
The AJ stated the facts not in dispute. The AJ noted that Complainant had
received a rating of 19/Very Good for the rating periods ending in October
2006, 2007 and 2008. The AJ found that the record showed that employees
who received a rating of 23 – 25 are eligible for a performance award.
In June 2008, Complainant was advised that the schedule for all the five
Laborers would change to include rotating weekends. On October 9, 2008,
Complainant was again notified of the change and that the effective date
of the work schedule would be October 26, 2008.
On Friday, October 31, 2008, Complainant called into work and left a
voicemail message indicating that he would not be coming into work
that day. The Custodian Leader took the message and placed the
information in a log. The Custodian Leader stated that Complainant
did not indicate whether he was requesting sick leave or annual leave.
The Custodian Leader wrote in the log that Complainant had called
and asked for sick leave. This information was provided to another
Management Official who told the Custodian Leader that she should not
have entered it as sick leave. The Supervisor spoke to Complainant on
November 4, 2008. She noted that it was not appropriate for Complainant
to leave a message regarding leave and should have spoken to someone.
The Supervisor provided Complainant with a time and attendance form
to sign. Complainant refused to do so. Complainant stated that he had
requested annual leave for October 31, 2008.
On November 7, 2008, Complainant provided a letter to the Second Line
Supervisor asking for his weekends off as an accommodation so that
he may perform his ministerial duties in observation of his religion.
The Second Line Supervisor averred that he denied the request because
he did not have sufficient workforce personnel for coverage of duties.
Further, the Second Line Supervisor indicated that he did not ask any
of Complainant’s co-workers to ascertain if they wanted to work the
weekend shifts. The Second Line Supervisor noted that there is a Sunday
premium pay for hours worked but still did not see if co-workers would
be interested in taking Complainant’s weekend shifts. On November
29, 2008, Complainant called the Supervisor and told her that he was
resigning.
The AJ found that there were no material facts in dispute. As to
Complainant’s claim of disparate treatment regarding the performance
appraisal, the AJ found that Complainant failed to show that he was
subjected to discrimination based on his race, sex, religion or prior
EEO activity. The AJ indicated that the record showed that the Second
Line Supervisor found Complainant to be an average worker, in that he
complies with his assignments but does not take on extra responsibilities.
The AJ noted that Complainant merely asserted that his performance was
outstanding; however he did not provide any evidence to support his
conclusory statement. Therefore, the AJ determined that Complainant
did not show that the appraisal constituted discrimination.
The AJ then turned to the events surround Complainant’s leave request
for October 31, 2008. The AJ noted that Complainant argued that his time
and attendance were “falsified.” However, the AJ found that the real
issue was that Complainant called in to take leave. He left a message
on an answering machine and failed to talk to a supervisor about taking
the day off. The AJ indicated that the policy required that Complainant
speak to a person rather than leave a message. Complainant was counseled
by the Supervisor about requesting leave on a message. The AJ found
that Complainant did not dispute this requirement and that his failure
to follow leave procedures resulted in Complainant being charged AWOL.
The AJ concluded there was nothing in the record to show that the
Agency’s action was discriminatory.
Next, the AJ turned to Complainant’s request for religious
accommodation. The AJ found that Complainant made a request for a
religious accommodation in the form of a schedule that did not require
Complainant to work on Sundays so that he may engage in church services
as a minister. The AJ noted that the Second Line Supervisor made no
good faith effort to find someone willing to fill in for Complainant and
there was no discussion with Complainant about any other options such
as could Complainant work Saturday and not Sunday. The AJ found the
simple denial of Complainant’s request for a religious accommodation
without the barest of effort was a violation of Title VII.
Finally, the AJ considered Complainant’s claim of constructive
discharge. The AJ determined that Complainant failed to show that
the Agency created working conditions which were so intolerable
that Complainant was forced to retire. The AJ noted that although
Complainant’s request had been denied, he had not indicated that he
worked any Sunday. Therefore, the AJ concluded that Complainant did not
establish that he was discriminated against when he resigned on November
29, 2008.
Finding that the Agency denied Complainant’s request for a religious
accommodation, the AJ held a hearing on damages. The AJ noted that at the
hearing, Complainant failed to present any evidence or allegation of any
pecuniary or non-pecuniary compensatory damages. When questioned by the
AJ, Complainant merely stated that he felt he was discriminated against.
He failed to inform the AJ about how it made him feel. The AJ also
found that Complainant did not provide any testimony or documentation
with regard to any harm that resulted from the denial of religious
accommodation. The AJ noted that Complainant had never actually worked
a Sunday and resigned after the decision by the Second Line Supervisor.
Complainant had requested $50,000 in compensatory damages at the hearing
but then would change his mind back and forth. Complainant admitted
that he could not prove any compensatory damages. Based on the damages
hearing and the testimony provided by Complainant, the AJ determined that
Complainant was not entitled to any compensatory damages. The AJ did
order that the Agency provide the Second Line Supervisor with training
and post an order stating that unlawful discrimination occurred at the
Agency’s facility.
The Agency subsequently issued a final order adopting the AJ’s finding
that Complainant proved that the Agency subjected him to discrimination
as alleged.
Complainant appealed. Complainant argued that the Agency failed to
provide him with a religious accommodation in retaliation for his prior
EEO activity. Further, Complainant asserted that he was subjected to
discrimination when he was issued the performance appraisal and place
in AWOL status for October 31, 2008. In addition, for the first time,
Complainant claimed that he had to come into work on Sunday, July 6, 2008,
in violation of his request for a reasonable accommodation. Finally,
Complainant requested that the matter be sent back for a hearing because
Complainant was not provided with the opportunity to bring his witnesses
who would establish his claim of denial of his religious accommodation
request.
The Agency asked that the Commission affirm its final action implementing
the AJ’s decision finding no discrimination as to Complainant’s
claims of disparate treatment and finding discrimination as to his claim
of religious accommodation.
ANALYSIS AND FINDINGS
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, at Chapter 9, § VI.B. (November 9, 1999)
(providing that both the Administrative Judge’s determination to issue
a decision without a hearing, and the decision itself, are subject to de
novo review). 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 Chapter 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 administrative judge could
order discovery, if necessary, after receiving an opposition to a motion
for a decision without a hearing).
On appeal, Complainant asserted that a hearing was required because
he was denied the opportunity to bring forth witnesses. Upon review,
we find that the record was adequately developed. Further, Complainant
merely offers his conclusory statement that his witnesses were needed.
He failed to show that here were material facts in dispute. In addition,
Complainant argued that he needed the evidence to show that he was
subjected to discrimination when he was denied a reasonable accommodation.
We note that the AJ found in Complainant’s favor as to the claim without
a hearing. As such, we find no basis to disturb the AJ’s finding that
summary judgment was appropriate.
Disparate Treatment
Complainant alleged he was subjected to disparate treatment when he
was issued a lower performance appraisal and noted as AWOL on October
31, 2008. A claim of disparate treatment based on indirect evidence
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 or 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 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. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima facie
case, need not be followed in all cases. Where the Agency has articulated
a legitimate, nondiscriminatory reason for the personnel action at
issue, the factual inquiry can proceed directly to the third step of the
McDonnell Douglas analysis, the ultimate issue of whether Complainant
has shown by a preponderance of the evidence that the Agency’s actions
were motivated by discrimination. U.S. Postal Serv. Bd. of Governors
v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp.,
EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health
and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington
v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review of the record, we find that the AJ correctly held that the
Agency articulated legitimate, nondiscriminatory reasons for its actions.
As to the performance appraisal, the Second Line Supervisor averred that
Complainant was an average employee who complies with his assignments but
does not take on any extra responsibilities or duties. As to the AWOL
issue, the record showed that Complainant was aware that the Agency had a
policy requiring employees to speak to an individual when requesting leave
over the phone and not to leave a message. Complainant did not follow
the correct procedure and, as a result, was given an oral admonishment
by the Supervisor. Complainant has not shown that the Agency’s reasons
were pretext for discrimination.
Religious Accommodation
Under Title VII, employers are required to accommodate the religious
practices of their employees unless a requested accommodation is shown
to impose an undue hardship. 29 C.F.R. § 1605.2(b)(1). The traditional
framework for establishing a prima facie case of discrimination based on
religious accommodation requires Complainant to demonstrate that: (1)
he has a bona fide religious belief, the practice of which conflicted
with his employment; (2) he informed the Agency of this belief and
conflict; and (3) the Agency nevertheless enforced its requirement against
him. Baum v. Soc. Sec. Admin., EEOC Appeal No. 01A05985 (March 21, 2002)
(citations omitted).
“A refusal to accommodate is justified only when an employer
. . . can demonstrate that an undue hardship would in fact result from
each available alternative method of accommodation.” 29 C.F.R. §
1605.2(c). Pursuant to 29 C.F.R. § 1605.2(d), alternatives for
accommodating an employee's religious practices include, but are not
limited to, voluntary substitutes and swaps, flexible scheduling, and
lateral transfers and job changes. In order to show undue hardship,
an employer must demonstrate that an accommodation would require more
than a de minimis cost. See Baum.
We find, as did the AJ, that Complainant has established a prima facie
case of religious discrimination. Complainant showed that he needed
Sundays off in order to attend church services and that he informed
the Agency of this conflict. The Second Line Supervisor denied
Complainant’s schedule request.
Thus, we now turn to the Agency's argument of undue hardship. Undue
hardship may be shown where the costs of the proffered accommodation
are more than de minimis or where such accommodation would deny another
employee his job shift guaranteed by a bona fide seniority system. See
Hoffman v. U.S. Postal Serv., EEOC Appeal No. 01A01092 (June 29, 2001),
request for reconsideration denied, EEOC Request No. 05A10911 (Nov. 16,
2001); 29 C.F.R. § 1605.2(e). We find that the AJ correctly held
that the Agency failed to meet its burden. The AJ noted that the
Second Line Supervisor specifically stated that he did not look into
the possibility of having other employees voluntarily switch schedules
in order to accommodate Complainant. As such, we determine that the AJ
properly determined that the Agency discriminated against Complainant
when he was denied a religious accommodation.
Constructive Discharge
Finally, with respect to Complainant's constructive discharge claim, the
central question in a constructive discharge case is whether the employer,
through its unlawful discriminatory behavior, made the employee's working
conditions so difficult that any reasonable person in the employee's
position would feel compelled to resign. Carmon-Coleman v. Dep't of Def.,
EEOC Appeal No. 07A00003 (Apr. 17, 2002). The Commission has established
three elements which Complainant must prove to substantiate a claim of
constructive discharge: (1) a reasonable person in Complainant's position
would have found the working conditions intolerable; (2) conduct that
constituted discrimination against Complainant created the intolerable
working conditions; and (3) Complainant's involuntary resignation resulted
from the intolerable working conditions. See Walch v. Dep't of Justice,
EEOC Request No. 05940688 (Apr. 13, 1995).
Upon review of the record, as the AJ correctly noted, Complainant did
not show that he, in fact, was forced to work on a Sunday in violation
of his religious accommodation request. For the first time on appeal,
Complainant asserted that he was forced to work on July 6, 2008.
Complainant provided no support to this claim. We also note that
Complainant requested the religious accommodation on November 7, 2008.
Further, this contradicts his testimony provided at the hearing on
compensatory damages. As such, we cannot find that Complainant worked
on a Sunday in violation of his request. Therefore, based on a review of
the record, we cannot find that Complainant was constructively discharged
when he resigned on November 29, 2008.
Legal Standards for an Award of Compensatory Damages
Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant
who establishes his or 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, 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 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 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 Complainant explaining how he 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 Agric., EEOC Appeal No. 01945652 (July 17, 1995).
We note that the AJ held a hearing with Complainant testifying and
providing Complainant the opportunity to submit evidence regarding
his claim for compensatory damages. The AJ determined based on
Complainant’s testimony and the lack of evidence that Complainant was
not entitled to compensatory damages. The AJ noted that, when pressed,
Complainant could not show that he suffered any harm related to the
denial of religious accommodation. The AJ also pointed to the fact that
Complainant had never been forced to work on a Sunday. In addition,
Complainant admitted during the hearing that he had no evidence to
support his request for $50,000 in compensatory damages. As such,
the Commission determines that the record supports the AJ denial of
Complainant’s request for compensatory damages.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the
Agency’s final action implementing the AJ’s decision finding no
discrimination as to Complainant’s claims of disparate treatment and
constructive discharge and finding that the Agency discriminated against
Complainant when he was denied a religious accommodation. The matter
is the REMANDED in accordance with the ORDER below.
ORDER (C0610)
To the extent the Agency has not done so already, the Agency is ordered
to take the following remedial action:
1. The Agency is directed to conduct training for the Second Level
Supervisor who was found to have violated Title VII. The Agency shall
address these employees’ responsibilities with respect to religious
accommodation requests.
2. The Agency shall consider taking disciplinary action against the Second
Level Supervisor. The Agency shall report its decision. 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.
3. The agency shall complete all of the above actions within 90 calendar
days from the date on which the decision becomes final.
The Agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
POSTING ORDER (G0610)
The Agency is ordered to post at its Lodging facility copies of the
attached notice. Copies of the notice, after being signed by the
Agency's duly authorized representative, shall be posted by the Agency
within thirty (30) calendar days of the date this decision becomes final,
and shall remain posted for sixty (60) consecutive days, in conspicuous
places, including all places where notices to employees are customarily
posted. The Agency shall take reasonable steps to ensure that said
notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)
Compliance with the Commission’s corrective action is mandatory.
The Agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC
20013. The Agency’s report must contain supporting documentation, and
the Agency must send a copy of all submissions to the Complainant. If the
Agency does not comply with the Commission’s order, the Complainant
may petition the Commission for enforcement of the order. 29 C.F.R. §�
�1614.503(a). The Complainant also has the right to file a civil action
to enforce compliance with the Commission’s order prior to or following
an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407,
1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the Complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. § 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this
case if the Complainant or the Agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party’s timely request for reconsideration. See 29
C.F.R. § 1614.405; Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
77960, Washington, DC 20013. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. § 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (T0610)
This decision affirms the Agency’s final decision/action in part, but it
also requires the Agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action in
an appropriate United States District Court within ninety (90) calendar
days from the date that you receive this decision on both that portion of
your complaint which the Commission has affirmed and that portion of the
complaint which has been remanded for continued administrative processing.
In the alternative, you may file a civil action after one hundred and
eighty (180) calendar days of the date you filed your complaint with the
Agency, or your appeal with the Commission, until such time as the Agency
issues its final decision on your complaint. If you file a civil action,
you must name as the defendant in the complaint the person who is the
official Agency head or department head, identifying that person by his
or her full name and official title. Failure to do so may result in
the dismissal of your case in court. “Agency” or “department”
means the national organization, and not the local office, facility
or department in which you work. If you file a request to reconsider
and also file a civil action, filing a civil action will terminate the
administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (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
November 7, 2011
__________________
Date
2
0120112943
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112943