0120113029
12-06-2011
Jessica N. Hadley, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services (National Institutes of Health), Agency.
Jessica N. Hadley,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services
(National Institutes of Health),
Agency.
Appeal No. 0120113029
Agency No. HHSNIH03732010
DECISION
On June 3, 2011, Complainant filed an appeal from the Agency’s May
5, 2011, final decision (Decision) concerning her 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). For the
following reasons, the Commission REVERSES the Agency’s final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant
worked as a Contract Specialist at the Agency’s Office of Research
Facilities, Office of Research Acquisitions facility in Bethesda,
Maryland. Complainant was hired effective May 27, 2008 as a Realty
Specialist, GS-1170-9. She was reassigned to a Contract Specialist
GS-1102-9 position, effective November 23, 2008.
On August 11, 2011, Complainant filed an EEO complaint alleging that the
Agency discriminated against her on the bases of sex (female) and reprisal
for prior protected EEO activity under Title VII of the Civil Rights Act
of 1964 when her first-level supervisor (S1: male) allegedly harassed
her between March 2009, and May 27, 2010, by the following actions::
1. In March 2009, S1 asked Complainant out on a date and on several
occasions thereafter repeatedly inquired why she would not see him;
2. S1 delayed Complainant's promotion from a GS-9 to GS-11 for six months,
from May 2009 to November 2009; and
3. On May 27, 2010, S1 denied Complainant a within-grade increase1.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of her right
to request a hearing before an EEOC Administrative Judge (AJ).
In accordance with Complainant’s request, the Agency issued a
final decision pursuant to 29 C.F.R. § 1614.110(b). The Decision
concluded that Complainant failed to prove that the Agency subjected
her to discrimination as alleged. Specifically, the Agency found
that Complainant failed to establish a prima facie case of hostile
work environment sexual harassment, while successfully establishing a
prima facie case of reprisal. The Agency further found, however, that
management officials articulated legitimate nondiscriminatory reasons
for their actions and that Complainant failed to establish that such
reasons were mere pretexts for discrimination.
With regard to the allegation of a hostile work environment, the Agency
found that Complainant alleged that S1 asked her if she could “take
him out sometime, and show him around, where she likes to go,”
and that after Complainant responded that she would think about it,
S1 asked her a few days later if she had thought about it, whereupon
Complainant told him she did not want to take him out because she did
not want to run into co-workers and did not want her character called
into question. The Agency found that there was nothing to indicate that
Complainant was exposed to unwelcome verbal or physical comments of a
sexual nature or that the alleged harassment was based in her sex, nor
were the comments so severe or pervasive as to constitute a hostile work
environment based on sex. With regard to the allegations of reprisal, the
Agency found that S1 denied that Complainant’s promotion was delayed,
stating that she was promoted once she became eligible, and denied that
Complainant was denied a Step increase. The Agency further found that
S1 and Complainant’s second-level supervisor (S2: female) said that
Complainant was told before she switched from the 1170 series to the
1102 series that her time would be reset and would not carry over to
the 1102 series, thus delaying any Step increase, and that Complainant
nevertheless agreed to accept the new position.
In response, Complainant maintained that the fact that she switched
from the 1170 series to the 1102 series is irrelevant to both the
issue of when she should have been promoted from GS-9 to GS-11 and when
she should have received her Step increase. She further argued that
she clarified this issue with the Human Resources department before
agreeing to the switch and was told that the switch would not affect her
time-in-grade, her promotion, or any Step increase. The Agency concluded
that Complainant failed to establish that the Agency’s articulated
reasons were pretextual. From this Decision, Complainant appeals, making
essentially the same arguments on appeal that she made before the Agency.
ANALYSIS AND FINDINGS
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 Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614,
at 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”).
To establish a claim of harassment Complainant must show that: (1)
she belongs to a statutorily protected class; (2) she 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 her 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 (March 8, 1994).
With respect to element (5), an employer is subject to vicarious
liability for harassment when it is created by a supervisor with immediate
(or successively higher) authority over the employee. See Burlington
Industries, Inc., v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257, 2270 (1998);
Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275, 2292-93
(1998). However, where the harassment does not result in a tangible
employment action the agency can raise an affirmative defense, which is
subject to proof by a preponderance of the evidence, by demonstrating:
(1) that it exercised reasonable care to prevent and correct promptly
any harassing behavior; and (2) that complainant unreasonably failed to
take advantage of any preventive or corrective opportunities provided
by the agency or to avoid harm otherwise. See Burlington Industries,
supra; Faragher, supra; Enforcement Guidance: Vicarious Liability for
Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18,
1999). This defense is not available when the harassment results in a
tangible employment action (e.g., a discharge, demotion, or undesirable
reassignment) being taken against the employee.
Complainant is female and therefore meets prong (1) of the above-mentioned
test. Complainant maintains that in March 2009, S1 asked her out on
a date and on several occasions thereafter repeatedly inquired why she
would not see him. Complainant also presented a copy of an email from
S1 dated November 19, 2009 wherein he states “Let me take you out
for your birthday today at 11 am.” See Report of Investigation (ROI),
Exhibit 8, p.8. The Agency contends that Complainant fails to show that
the alleged behavior was unwelcome. Specifically in reference to a log
Complainant provided detailing the conversations between herself and S1,
the Agency found that:
The information submitted by the Complainant is void of any statements
which indicated the verbal comments were unwelcome. At no time, even when
[S1] asked if he overStepped, did she tell [S1] she was not comfortable
with his comments, nor did she tell [S1] that she did not want to continue
the conversation. Complainant also stated "she didn’t feel as if she
couldn’t say no to him," Furthermore, when [S1] asked Complainant not
to mention his request to [S2], she agreed.
We find the Agency’s arguments in this regard to be unpersuasive.
The challenged conduct must be unwelcome in the sense that the employee
did not solicit or incite it, and in the sense that the employee regarded
the conduct as undesirable or offensive. See EEOC Policy Guidance on
Current Issues of Sexual Harassment, No. N-915-050, at Guidance, §
A. (Mar. 19, 1990) (Policy Guidance). As Complainant states in her
Formal Complaint, “I did not want to hurt his feelings because he was
my boss,” but we note that, according to her log, after S1 first asked
if she would take him out, Complainant at first declined to provide a
definitive answer, only doing so a few days later after being pressed
by S1. See ROI Exhibit 8, p. 5. On that occasion, she told him that she:
had thought about it and decided that I did not want to take him out.
I told him that I had run into a specific co-worker on more than one
occasion outside of work and I would hate for that to happen if I was
out with him. He asked if I had run into the specific co-worker around
the areas where I usually go out. I said “no” but I would not want
to run into anyone outside of work and be in [S1’s] presence. I told
him that I do not want my character called into question regarding work
or anything else. . . . , [A] few minutes later, he asked “but it's
not that you didn't want to go out with me? You would have been okay
to go out with me?” Id.
Complainant’s log shows that in the following days, S1 continued to
probe her responses, including asking how being seen out with him would
impugn her character, asking whether or not she would have dated him
if they did not work together, and trying to poke holes in or find ways
to get around the reasons she gave for not wanting to go out with him.
See id. In addition, the log shows that S1 asked Complainant not
to tell S2 about their conversation. See id. Furthermore, in her
Formal Complaint, Complainant states “About week after the initial
conversation, I informed [S2] of the conversations, as I was feeling
very uneasy.” Finally, we note that S1 admits that “I later thought
about what I said and realized it could be misunderstood so I went back to
[Complainant] and explained. I apologized to her and said I should have
not made the comment.” ROI, Exhibit 10, p. 3. Such evidence shows
not only that S1’s repeated actions were unwelcome, but that S1 knew
that they were unwelcome.
S1 denies that he requested a personal relationship with Complainant,
maintaining that he was “just making conversation.” ROI, Exhibit
10, p. 3. Following a review of the record, however, we are unpersuaded
by this claim. The fact that Complainant kept a contemporaneous log of
the events and also alerted S2 shortly after the alleged events occurred
lends credence to her version of events. Additionally, the fact that S1
felt compelled to return and apologize does not support his claim that
the conversation between the two was innocent. We therefore find that
the events occurred as described by Complainant.
The Agency next contends that the comments by S1 were not so severe or
pervasive to affect a term or condition of employment. Such a finding,
however, misconstrues Complainant’s claim. Complainant is not alleging
that S1’s comments were so severe or pervasive as to affect a term or
condition of employment. Instead, Complainant is alleging that when she
turned down S1’s advances, he retaliated by delaying her promotion by
six months and denying her a Step increase, actions that clearly affected
the terms and conditions of her employment.
S1 maintains that Complainant’s Step increase and promotion were neither
delayed nor denied and that she received them when she became eligible
for them. S1 referred to Complainant’s personnel records which have
been made part of the record. These show that Complainant was hired
by the Agency effective May 27, 2008 as a GS-9-1170 Realty Specialist.
ROI, Exhibit 17. Effective November 23, 2008, she was voluntarily
reassigned to a GS-9-1102 Contract Specialist position. Id. Effective
June 7, 2009, she received a Step increase from Step 1 to Step 2. Id.
Effective November 22, 2009, Complainant was promoted from a GS-9 to
a GS-11. Id. Complainant maintains that she should have been promoted
to a GS-11 in or around May 2009 instead of November 2009. According to 5
C.F.R. § 300.604, submitted by the Agency, “Candidates for advancement
to a position at GS-6 through GS-11 must have completed a minimum of 52
weeks in positions no more than two grades lower (or equivalent) when the
position to be filled is in a line of work properly classified at 2-grade
intervals.” ROI Exhibit 25. Complainant therefore became eligible
for promotion to a GS-11 in late May 2009, 52 weeks after she was hired
as a GS-9. However, approximately one week after becoming eligible for
promotion, she instead received a Step increase from Step 1 to Step 2.
S1’s reason for Complainant receiving a Step increase instead of a
grade increase is essentially nonresponsive. S1 averred that “the
attached personnel records show [Complainant] was promoted to GS-11,
effective November 22, 2009 after successful performance at the GS
9 grade level.” Such a response does not address the issue of why
Complainant was not promoted effective May 2009 instead of November 2009.
S2 averred that the promotion was delayed because Complainant switched
from the 1170 series to the 1102 series halfway through her first year
on the job. S2 averred that:
When [Complainant] had been a federal employee for at least one year,
she still thought she was eligible for a promotion to GS 11 even though
she had transferred from the GS-1170-9 position to a GS-1102-9 position.
This had been explained to her before she accepted the GS-1102-9 position
that the qualifying and competencies were different. She agreed to
accept the GS-1102-9 position anyway. She accepted the GS-1102-9 as a
federal employee with less than 12 months of federal service; however
the time as a federal employee does not automatically equate to time in
grade as an 1102-GS 9.
ROI, Exhibit 9, p. 6.
Complainant has repeatedly denied that such a conversation took place.
In her rebuttal statement, complainant averred that:
at no time did [S2] or [S1] advise me that switching to the 1102 series
from the 1170 series would cause a delay in any possible grade increases.
I was never advised when I was offered the position in the summer of
2008; and I was also never advised of a new one year requirement in the
meeting in June of 2009.
ROI, Exhibit 8, p. 1.
Complainant further maintains:
When I was offered my current position as a CT Specialist (1102), I was
already six-months into a GS-9/11/12 position, and I was concerned that if
I accepted this position, I would not be promoted to GS-11 as currently
scheduled. Delaying my scheduled promotion equated to an annual loss
of several thousand dollars. I shared my concerns with [S2] when she
offered me the position in the summer of 2008 (I did not switch to the
[1102 position] until November 9, 2008 because of an agreement between
[S1] and [Complainant’s former supervisor: S3; male]). She stated that
she did not think there would be a delay, but suggested that I discuss
it with [S3] and the AO. This suggestion from [S2] is the only reason
that [S3] (my supervisor at the time) and I called the AO's office.
The AO confirmed that [S2] was correct, and that if my performance
remained satisfactory, there was no reason why a promotion would be
delayed. Based on this information, I accepted the position.
Id.
We note that S2’s articulated reason for the delay is not supported
by § 300.604, which makes no mention of changes in series affecting
the timing of a promotion. Furthermore, the Administrative Assistant
(AA: female) who processed promotions and Step increases for the Agency
disagreed with S2. See ROI, Exhibit 11. We note that AA was asked
“[a]ccording to the Complainant, she should have been promoted because
when she was moved from the 1170 series to the 1102 series her time in
grade would not be affected. Please respond.” AA responded “I found
out later by the now Acting Director that the above statement is true.”
Id., p.4. We further note that the requesting paperwork for the promotion
was submitted by S2 in June 2009, not long after Complainant maintains
she became eligible for the promotion, which undercuts S2’s claim that
Complainant was not eligible for promotion until several months later.
See ROI, Exhibit 17, p. 5.
Finally we note that S3, who is an Agency management official, fully
supports Complainant’s version of events. In an affidavit, S3 states:
I was [Complainant’s] first line supervisor when she was assigned to
Real Estate Contracting Branch. She applied for a position as an 1102
and part of [her] decision to switch from series 1170 to 1102 was if her
time in grade as an 1170 would count toward her time as 1102. Both [S2,
S1] and the Administrative Officer confirmed that her time in grade as
an 1170 counted toward her time in grade as 1102.
ROI, Exhibit 12, p. 2
Furthermore, S3 averred that:
Yes, I believe [S1] was retaliating against [Complainant] in denying
her a grade increase since [Complainant] refused to go out with [S1].
[Complainant] was highly recruited by me as a Realty Specialist series
1170. I spoke with [S2] and [S1] regarding wanting to recruit her for the
Real Estate Contracting Branch. Both [of them] spoke with me asking that
I not recruited [sic] [Complainant] for an 1170 due to their interest in
recruiting her for an 1102. I told [S1 & S2] that if she were hired as an
1170 she would then be a Federal Employee then she could be selected off
of the Merit Promotion certification instead of All Sources certification.
During this time it was also discuss [sic] if being an 1170 would impact
her time and grade as an 1102. It was determined that it would not
impact her time in grade promotion from one grade to another higher grade.
Id.
Given the above, we find that Complainant has met her burden of showing,
by a preponderance of the evidence, that the Agency’s articulated
reason for delaying her promotion from May 2009 to November 2009 is a
mere pretext for prohibited discrimination.
With regard to Complainant’s denied Step increase, Complainant
maintains that she should have received a Step increase in May 2010,
which would have been the two-year anniversary of her hire, and the one
year anniversary of the promotion the should have received six months
before it was granted. Instead, the record shows Complainant received
a Step increase from a GS-9 Step 1 to a GS-9, Step 2 in June 2009.
The record does not show any Step increase in May 2010. When asked to
articulate a reason for the denial, both S1 and S2 were nonresponsive
to the issue of the May 2010 Step increase. S1 explains that he was on
Administrative Leave effective May 6, 2010 but that “it is my conclusion
that [Complainant] did receive a within grade increase. . . . These
records also show that a SF-50 was prepared with an effective date of
June 7, 2009 for a within grade increase to GS-1102, 9, Step 2.” ROI,
Exhibit 10, p. 2. Such a response, however, addresses 2009, not 2010.
Similarly, S2’s responses do not specifically address the May 2010
Step increase but rather the Step increase she received in June 2009.
See Generally ROI Exhibit 9.
We note that while an agency's burden of production is not onerous, the
Agency must nevertheless provide a specific, clear, and individualized
explanation for its action so that the complainant is provided with an
opportunity to prove that the agency's explanation was a pretext for
discriminatory animus. See Wilson v. Department of Veterans Affairs,
EEOC Appeal No. 01995055 (Dec. 21, 2001) (agency's conclusory statement
that complainant was not best-qualified candidate failed to meet burden
to articulate legitimate, non-discriminatory reason for nonselection and
thwarted fact-finder's ability to comparatively analyze candidates);
see also EEOC v. Target Corp., 460 F.3d 946, 959 (7th Cir. 2006)
(employer should have articulated qualities applicant failed to meet in
order to articulate legitimate, nondiscriminatory reason so applicant
would know what evidence to present to establish pretext). We find
that the evidence presented by the Agency is not sufficient to provide
a specific, clear, and individualized explanation as to why Complainant
was not given a Step increase in May 2010. Instead, Agency officials
addressed Complainant’s 2009 Step increase. Therefore, the Commission
finds that the Agency failed to overcome Complainant's prima facie case
of sexual harassment.
CONCLUSION
Based on a thorough review of the record and the contentions on
appeal, including those not specifically addressed herein, we find that
Complainant was subjected to sexual harassment when S1 repeatedly asked
her out on dates and when she refused, he delayed her promotion by several
month and denied her May 2010 Step increase. We therefore REVERSE the
Decision. Because Complainant is the prevailing party, we REMAND the
decision to address the issue of remedies, including compensatory damages.
ORDER (C0610)
The Agency is ordered to take the following remedial action:
I. Within sixty (60) days of this decision becoming final, the Agency
shall change Complainant’s personnel records to reflect a grade increase
from GS9 to GS11 effective 52 weeks after her May 27, 2008 hiring date.
The Agency shall further change the records to reflect a Step increase
effective 104 weeks after her May 2008 hiring date.
II. The Agency shall determine the appropriate amount of back pay
(with interest, if applicable) and other benefits due Complainant,
including leave, pursuant to 29 C.F.R. § 1614.501, no later than
sixty (60) calendar days after the date this decision becomes final.
The Complainant shall cooperate in the agency's efforts to compute
the amount of back pay and benefits due, and shall provide all relevant
information requested by the Agency. If there is a dispute regarding the
exact amount of back pay and/or benefits, the Agency shall issue a check
to the Complainant for the undisputed amount within sixty (60) calendar
days of the date the agency determines the amount it believes to be due.
The Complainant may petition for enforcement or clarification of the
amount in dispute. The petition for clarification or enforcement must
be filed with the Compliance Officer, at the address referenced in the
statement entitled "Implementation of the Commission's Decision."
III. Within sixty (60) days of the date on which this decision
becomes final, the Agency shall conduct a supplemental investigation
to determine, with Complainant's cooperation, the extent of her
nonpecuniary compensatory damages. Complainant shall provide objective
evidence/documentation that the damages in question were a result of the
Agency's discrimination and of the amount of the claimed damages. Within
thirty (30) days of its receipt of the subject evidence/documentation,
the Agency shall calculate Complainant's entitlement to nonpecuniary
compensatory damages, and issue a final decision with appropriate appeal
rights determining the amount of damages awarded, if any. A copy of
the Agency's final decision and of its letter to Complainant forwarding
payment of the compensatory damages must be sent to the Compliance
Officer, as referenced below.
IV. The Agency shall consider taking disciplinary action against S1
and S2. 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 verifying
that the corrective action has been implemented.
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.
POSTING ORDER (G0610)
The Agency is ordered to post at its Office of Research Facilities,
Office of Research Acquisitions facility in Bethesda, Maryland 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.
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 (R0610)
This is a decision requiring the Agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the Agency, or filed your appeal with the
Commission. If you file a civil action, you must name as the defendant
in the complaint the person who is the official Agency head or department
head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
“Agency” or “department” means the national organization,
and not the local office, facility or department in which you work.
Filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (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
December 6, 2011
__________________
Date
1 Also known as a Step increase.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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