0120073809
06-24-2010
James H. Johnson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southeast Area), Agency.
James H. Johnson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120073809
Agency No. 1H-374-0031-06
DECISION
On August 30, 2007, Complainant filed an appeal from the agency's July
31, 2007 final decision 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 appeal is accepted pursuant to 29 C.F.R. � 1614.405(a).
For the following reasons, we REVERSE in part and AFFIRM in part the
Agency's final decision.
ISSUES PRESENTED
The issues presented are whether Complainant was discriminated against on
the bases of his race (Black), sex (male), and in reprisal for engaging
in prior protected EEO activity, when: (1) on November 4, 2005, his
supervisor fondled him, as alleged; and (2) on or after March 30, 2005,
a Maintenance Operations Manager attempted to have Complainant issued
a letter of warning for his attendance.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Maintenance Mechanic at the agency's Memphis, Tennessee Bulk Mail
Facility. On September 28, 2006, Complainant filed an EEO complaint
alleging that he was discriminated against as set forth in the statement
of "Issues Presented," above.
Complainant alleges that on November 4, 2005, a fellow employee entered
the battery room where Complainant was and inquired about the location of
fork lift No. 27. Complainant alleges that his supervisor subsequently
entered the same room and that he (Complainant) questioned his supervisor
as to whether he had seen the fork lift. Complainant alleges that his
supervisor raised Complainant's shirt from his crotch area and stated,
"It's not under there, is it?" Report of Investigation (ROI), at Aff. A.
Complainant alleges that his supervisor subsequently raised Complainant's
shirt again and touched him in the area of his penis, stating, "You need
to find it." Id. Complainant states that he reported the incident to
the Agency's Postal Inspector in Charge by letters dated November 5,
2005 and January 15, 2006, and again by an undated letter.
In its October 16, 2006 final decision, the agency dismissed Complainant's
complaint on the grounds of untimely EEO Counselor contact. Specifically,
the agency determined that Complainant's initial EEO contact occurred
on August 10, 2006, beyond the 45-day limitation period. The agency
further concluded that Complainant provided no evidence that it was not
aware of the time limits for contacting an EEO Counselor. Furthermore,
the agency concluded that EEO posters with pertinent information
were on display at Complainant's workplace. On appeal, Complainant
argued that he had been unaware of the forty-five day time limitation
and that he first became aware that his case was supposed to be filed
with the EEO office after he went to a mandatory training class on EEO
around July 18, 2006. The Commission reversed on appeal, finding that
the agency placed no evidence in the record supporting its assertion
that there were EEO posters containing information on applicable time
limits in Complainant's workplace. We reversed the agency's final
decision dismissing the complaint, and remanded the complaint for
further processing. James H. Johnson v. United States Postal Service,
EEOC Appeal No. 0120070701 (February 16, 2007).
At the conclusion of the subsequent investigation, Complainant was
provided with a copy of the report of investigation and notice of his
right to request a hearing before an EEOC Administrative Judge (AJ).
In accordance with Complainant's request, the agency issued a final
decision pursuant to 29 C.F.R. � 1614.110(b). The agency concluded
that Complainant failed to prove that he was subjected to discrimination
as alleged. Specifically, the agency found that Complainant failed to
establish a prima facie case of race, sex, or reprisal discrimination.
Further, the agency found that Complainant failed to offer any
evidence into the record that the reasons articulated by the agency
were not the true reasons for its actions. Finally, the agency held
that Complainant failed to present any evidence that agency officials
harbored discriminatory animus towards members of his (Complainant's)
protected classes.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that there is sufficient record evidence
and witness testimony to support his contentions that he was sexually
harassed and subjected to reprisal for engaging in prior EEO activity.
Complainant proffers that the agency's response in the instant case is
an attempt to cover up these prohibited actions.
In response to Complainant's appeal, the agency states that its position
remains as stated in the final agency decision. The agency argues that
Complainant's brief does not provide sufficient information to show that
management's actions were based on discriminatory animus, and fails to
sufficiently rebut management's legitimate, non-discriminatory reasons
for its actions. The agency urges the Commission to sustain its final
agency decision.
ANALYSIS AND FINDINGS
Standard of Review
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (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").
Disparate Treatment and Harassment
To prevail in a disparate treatment claim such as this, Complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially establish a prima facie case by demonstrating that he or
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence,
that the agency's explanation is pretextual. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (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. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
To establish a claim of harassment based on race, sex, disability, age,
or reprisal, complainant must show that: (1) he is a member of the
statutorily protected class; (2) he was subjected to harassment in the
form of unwelcome verbal or physical conduct involving the protected
class; (3) the harassment complained of was based on the statutorily
protected class; and (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. Humphrey v. United States Postal Service,
EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11. 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 (March 8, 1994).
Further, the incidents must have been "sufficiently severe and 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); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75
(1998). In the case of harassment by a supervisor, complainant must
also show that there is a basis for imputing liability to the employer.
See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Similarly, in order to establish a prima facie case of sexual harassment,
the complainant must prove, by a preponderance of the evidence, the
existence of five elements: (1) that he is a member of a statutorily
protected class; (2) that he was subjected to unwelcome conduct related
to his sex; (3) that the harassment complained of was based on his
sex; (4) that the harassment had the purpose or effect of unreasonably
interfering with his work performance and/or creating an intimidating,
hostile, or offensive work environment; and (5) that there is a basis
for imputing liability to the employer. See Henson v. City of Dundee,
682 F.2d 897, 903 (11th Cir. 1982). 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 (March 8, 1994).
Complainant's supervisor testified that he remembered an investigator
coming to the facility and that he did not know why the investigator was
there. He indicated that the investigator informed him that Complainant
alleged that he (the supervisor) had grabbed Complainant's shirt and
fondled him. ROI, at Aff. B. Complainant's supervisor asserts that this
never happened, and that he did not remember having the conversation
Complainant alleges to have had with him regarding the forklift.
Id. Complainant, however, offers that the statement of a co-worker
eyewitness contained in the record, which supports his allegations.
ROI, at Ex. 4.
We find that complaint has established a prima facie case of unlawful
sexual harassment. We find that the incident Complainant complains
of, and that is corroborated by Complainant's co-worker's statement,
is "sufficiently severe and pervasive to alter the conditions of
Complainant's employment and create an abusive working environment."
We find nothing in the record to rebut or discredit the eyewitness's
statement which corroborates Complainant's allegations. Further, we find
no basis to relieve the agency of liability, in as much as Complainant's
repeated complaints to the Postal Inspectors were ignored.1 Therefore, we
find that Complainant has established that he was subjected to unlawful
harassment, and we reverse the agency's finding with regard to this
claim.
Reprisal
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a Complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he or she was subjected to adverse treatment by the agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000). The Commission has stated that adverse actions
need not qualify as "ultimate employment actions" or materially affect
the terms and conditions of employment to constitute retaliation.
EEOC Compliance Manual Section 8: Retaliation, No. 915.003, at 8-15
(May 20, 1998); see Burlington N. and Santa Fe Ry. Co. v. White, 548
U.S. 53 (2006) (finding that the anti-retaliation provision protects
individuals from a retaliatory action that a reasonable person would
have found "materially adverse," which in the retaliation context means
that the action might have deterred a reasonable person from opposing
discrimination or participating in the EEO process).
We find that Complainant failed to establish that he was subjected
to an adverse action imposed by the agency after he participated in
a protected activity. The evidence Complainant submits regarding his
reprisal claim makes it unclear which adverse action by the agency he
is using to support this claim. Although Complainant submits an email
referencing a letter of warning to be issued on or after March 30,
2005, the record only reflects that Complainant was issued a letter of
warning on January 13, 2006. ROI, at Aff. A, Page 19; ROI, Aff. C.
Because this email, without more, is insufficient to establish that
Complainant was actually subjected to adverse action by the agency on
or after March 30, 2005, we consider the January 13, 2006 letter as the
adverse action Complainant is referencing in this case. In either case,
Complainant did not make EEO counselor contact regarding his harassment
claim until August 10, 2006, approximately seven months after the more
recent letter of warning issued to him. This particular sequence of
events does not make out a logical claim of reprisal discrimination.
To establish a prima facie case of reprisal discrimination, Complainant
would have had to show that he was subjected to some adverse action
imposed by the agency after August 10, 2006.
We also find insufficient evidence in the record to support a finding
of discrimination based on reprisal because Complainant has failed to
establish a nexus between the protected activity and any adverse action
taken against him by the agency. Complainant failed to meet his burden
of establishing that the official responsible for the adverse action
had the requisite knowledge for a finding of discrimination based on
reprisal. The Commission has previously determined that the "awareness"
or "knowledge" element of a prima facie case of reprisal, can only be
established if complainant shows by a preponderance of the evidence
that the official specifically responsible for the adverse action in
question had knowledge of complainant's participation in prior protected
EEO activity. Spector v. Department of Labor, EEOC Appeal No. 01840559
(May 29, 1985). Thus we find that Complainant failed to establish a
prima facie case of reprisal.
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.
Compensatory damages may be awarded for the past pecuniary losses,
future pecuniary losses, and non-pecuniary losses which are directly
or proximately caused by the agency's discriminatory conduct.
EEOC Enforcement Guidance on Compensatory and Punitive Damages
Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice
No. 915.002, at 8 (July 14, 1992). Objective evidence of compensatory
damages can include statements from the complainant concerning his or
her emotional pain or suffering, inconvenience, mental anguish, loss of
enjoyment of life, injury to professional standing, injury to character
or reputation, injury to credit standing, loss of health, and any other
non-pecuniary losses that are incurred as a result of the discriminatory
conduct. Statements from others, including family members, friends, health
care providers, or other counselors (including clergy) could address the
outward manifestations or physical consequences of emotional distress,
including sleeplessness, anxiety, stress, depression, marital strain,
humiliation, emotional distress, loss of self-esteem, excessive fatigue,
or a nervous breakdown. Lawrence v. United States Postal Service, EEOC
Appeal No. 01952288 (Apr. 18, 1996) (citing Carle v. Department of the
Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993)).
Evidence from a health care provider or other expert is not a mandatory
prerequisite for recovery of compensatory damages for emotional harm.
A complainant's own testimony, along with the circumstances of a
particular case, can suffice to sustain her burden in this regard.
The more inherently degrading or humiliating the agency's action is, the
more reasonable it is to infer that a person would suffer humiliation
or distress from that action. The absence of supporting evidence,
however, may affect the amount of damages appropriate in specific cases.
See Banks v. United States Postal Service, EEOC Appeal No. 07A20037
(September 29, 2003) (citing Lawrence v. United States Postal Service,
EEOC Appeal No. 01952288 (Apr. 18, 1996)).
An award of non-pecuniary compensatory damages should reflect the extent
to which the agency's discriminatory action directly or proximately caused
the harm as well as the extent to which other factors also caused the
harm. Johnson v. Department of the Interior, EEOC Appeal No. 01961812
(June 18, 1998). It is the complainant's burden to provide objective
evidence in support of her claim and proof linking the damages to the
alleged discrimination. Papas v. United States Postal Service, EEOC
Appeal No. 01930547 (Mar. 17, 1994); Mims v. Department of the Navy,
EEOC Appeal No. 01933956 (Nov. 24, 1993). The Commission recognizes
that not all harms are amenable to a precise quantification; the
burden of limiting the remedy, however, rests with the employer. Chow
v. Department of the Army, EEOC Appeal No. 01981308 (Feb. 12, 2001).
Moreover, the amount of an award should not be "monstrously excessive"
standing alone, should not be the product of passion or prejudice, and
should be consistent with the amount awarded in similar cases. Cygnar
v. Chicago, 865 F.2d 827, 848 (7th Cir. 1989); EEOC v. AIC Security
Investigations, Ltd., 823 F. Supp. 571, 574 (N.D. Ill. 1993).
Complainant testified that his supervisor's actions and subsequent
comments made him feel uncomfortable at work. Complainant describes his
discomfort level as severe enough to interfere with his job performance.
ROI, at Aff. A, Page 2. Complainant asserts that when he sees his
supervisors at work, he immediately develops a headache and must take
a pain pill to get through the remainder of the day. Id. Complainant
states that as a result of this incident, his stress level is increased
which causes flare ups to his asthma and high blood pressure, as well as,
increased headaches. Id. The record reflects that Complainant was being
treated for Post Traumatic Stress Disorder and taking stress medications
at the time of the incident in question. Complainant's Appeal, Ex. 1;
ROI, at Aff. A, Page 2. As a result of the incident, Complainant's
medication has been changed and increased. ROI, at Aff. A, Page 2.
Complainant testified as to the number and dosage of medications he is
now required to take.
When a complainant is incapacitated or disabled in some way prior to
the incident, as is the case here, the agency is only liable for the
additional harm or aggravation caused as a result of their actions.
See Wallis v. United States Postal Service, EEOC Appeal No. 01950510
(November 13, 1995). Where a complainant's condition would have
inevitably worsened, an agency is entitled to have the complainant's
damages award reduced to reflect the proportion of the damages that
would have been suffered even in the absence of subsequent injury. Id.
However, the agency bears the burden of proof of establishing the
extent of the damages that the preexisting condition would inevitably
have caused. Id.
The Commission notes that the Agency in the instant case has offered no
evidence regarding the extent to which complainant's condition inevitably
would have worsened absent the discriminatory behavior. Therefore, while
the Commission acknowledges that Complainant had a preexisting condition,
the Agency has not met its burden regarding a proportional reduction of
any damages. We find it reasonable that an individual in Complainant's
position, subjected to the type of harassment Complainant suffered
in this case would have developed some feelings of mental anguish,
emotional stress, humiliation, embarrassment and intimidation as a result
of the incident. We therefore will order the agency to pay Complainant
compensatory damages in the amount of $10,000. See Brown v. United States
Postal Service, EEOC Appeal No. 0720060042 (April 11, 2007) ($10,000 where
complainant suffered anxiety and humiliation requiring medication); Lee
v. United States Postal Service, EEOC Appeal No. 0120054893 (February
15, 2007) ($10,000 where complainant suffered bouts of depression and
headaches, and there was evidence of other contributing factors); Eberly
v. United States Postal Service, EEOC Appeal No. 07A30085 (May 20, 2004)
($10,000 where complainant experienced depression, anxiety, and low
self esteem, but the majority of symptoms were due to prior unrelated
incident).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we REVERSE in part
and AFFIRM in part the agency's final order and REMAND the matter back
to the agency to take corrective action with this decision and the Order
of the Commission, below.
ORDER
The agency is ORDERED to take the following remedial action:
1. The agency, its officials, managers, and supervisors, are hereby
enjoined from discriminating against Complainant. The agency shall
ensure that Complainant is not subjected to discrimination, or restraint,
coercion, and/or interference related to her right to participate in
the EEO process.
2. Not later than thirty (30) days from the date on which
this decision becomes final, the agency shall tender to Complainant
non-pecuniary compensatory damages in the amount of $10,000.
3. Not later than ninety (90) days from the date on which this
decision becomes final, the agency shall administer EEO training to
the responsible management official in the Memphis, Tennessee Bulk
Mail Facility. The Commission does not consider mandatory training to
constitute disciplinary action.
4. Not later than thirty (30) days from the date on which this
decision becomes final, the agency shall consider taking disciplinary
action against the subordinate employee identified as being responsible
for the discriminatory harassment perpetrated against Complainant.
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.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's calculation of back pay and other benefits due complainant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Memphis, Tennessee Bulk Mail
Facility copies of the attached notice. Copies of the notice, after
being signed by the agency's duly authorized representative, shall
be posted by the agency within thirty (30) calendar days of the date
this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0900)
If Complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
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 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the Complainant. If the agency does not comply with the Commission's
order, the Complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the Complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the Complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
The Commission may, in its discretion, reconsider the decision in this
case if the Complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013. In the absence of a legible postmark, the request
to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0408)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, you must name as the defendant
in the complaint the person who is the official agency head or department
head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1008)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. �� 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time
limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 24, 2010
Date
1 We note that the agency has neither argued nor established that it
had in place a process to report such allegations of harassment, of
which complainant was aware and unreasonably failed to avail himself.
See EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful
Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999).
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0120073809
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120073809