0120122363
05-10-2013
Kevin L. Dupuis, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Northeast Area), Agency.
Kevin L. Dupuis,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 0120122363
Agency No. 4B-020-0082-11
DECISION
On May 5, 2012, Complainant filed an appeal from the Agency's April 10, 2012, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
The issue presented is whether the Agency properly found that Complainant failed to prove that he was subjected to unlawful discrimination or harassment because of his disability or previous EEO activity.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk at the Middleboro, Massachusetts, Post Office. Complainant began his career with the Agency in May 1994. Complainant has been diagnosed with Congenital Cerebral Palsy, and in 2006, his physician indicated that Complainant was restricted from climbing, lifting more than 70 pounds, and performing tasks that require fine motor skills. Additionally, Complainant has medical restrictions that note that he has difficulty working with math/numbers.
Complainant entered into an EEO settlement agreement with the Agency on May 17, 2006. Report of Investigation (ROI), Exhibit 3. The settlement agreement provided, in pertinent part, that Complainant would be given a position as a part-time regular Clerk in the Middletown Post Office with a minimum of 30 hours per week, given Sundays off, and would not be assigned window duties. The agreement also provided that management would pursue acquiring Verbex or other appropriate voice recognition software that would allow Complainant to distribute mail according to the scheme.
In a letter dated September 10, 2010, the Postmaster informed Complainant that his position would be abolished effective September 24, 2010, because of the removal of the Carrier Sequence Bar Code Sorter (CSBCS) machine from the office. Exhibit 5. From October 2010 until July 2011, Agency officials requested updated medical documentation from Complainant regarding his restrictions.
Specifically, in a letter dated October 14, 2010, the Occupational Health Nurse for the South East New England District informed Complainant that he last submitted medical documentation in 2006, and that he needed to provide updated medical documentation addressing his current medical limitations because of impending operational changes in the Middleboro Post Office. Affidavit A, pp. 51, 52.
On October 25, 2010, Complainant's physician (Dr1) advised the Agency that he treated Complainant for anxiety and depression, and had been informed of an impending change to his work schedule. Dr1 recommended that Complainant not be assigned to work split shifts because that scheduling arrangement would have a significant impact on the level of stress and anxiety experienced by Complainant.
In a letter dated January 3, 2011, the Labor Relations Specialist advised Complainant that because of operational changes at the Middleboro Office, it was necessary to make changes to his current position. The Labor Relations Specialist further stated that Complainant was scheduled for a DRAC meeting on January 14, 2011, to ensure a proper assessment of his medical limitations, and Complainant should be prepared to provide his most recent documentation outlining his limitations and restrictions.
In a letter dated April 5, 2011, the DRAC Manager/Labor Relations Manager (DRAC Manager) stated that because of declining mail volume and subsequent changes in operational needs, the work that the Postmaster could assign Complainant within his limitations had diminished. The DRAC Manager stated that the "interactive process is a necessary effort to assist in determining what work is available within [Complainant's] limitations," and "[i]f there is some disagreement concerning the availability of work, then the DRAC meeting is the proper forum for that conversation." Exhibit I. The DRAC Manager also informed Complainant that an interactive meeting was scheduled for Complainant with DRAC for April 17, 2011. Additionally, in a letter dated April 29 2011, S1 also asked Complainant to provide updated medical information regarding any limitations he may have with regard to his position.
In a statement dated May 3, 2011, Dr further stated that "there is no medical update at this time; all previously identified medical limitations and physical restrictions remain in force." Exhibit 4. In a letter dated May 9, 2011, Complainant's attorney informed S1 that Complainant was not requesting any additional reasonable accommodations and that all previous reasonable accommodations remained in place. In a letter dated May 9, 2011, S1 informed Complainant that the information provided by him was insufficient, and he needed to submitted updated specific restrictions.
In a letter to the Postmaster dated July 25, 2011, Complainant's attorney stated that Complainant had been subjected to harassment when management held a discussion with Complainant in the office break room to discuss his medical records and reasonable accommodations.
The Agency issued Complainant a Letter of Warning dated August 12, 20011, in which it charged him with "Failure to Discharge Your Assigned Duties Conscientiously and Effectively" on the basis that he failed to scan "Red Plum" flyers when they arrived on July 27, 2011.
On August 30, 2011, Complainant filed an EEO complaint in which he alleged that the Agency discriminated against him on the basis of disability when:
1. From September 2010 until July 2011, the Agency subjected Complainant to a hostile work environment on the basis of disability when it continually demanded additional updated medical documentation regarding his reasonable accommodation;
2. On August 12, 2011, the Agency subjected Complainant to reprisal because of his prior EEO activity when it issued Complainant a Letter of Warning for Failure to Discharge Duties Conscientiously and Effectively;
3. On September 5, 2011, and ongoing, the Agency subjected Complainant to reprisal when it required him to clock in on standby-time and made him remain in the break room for the entire shift;
4. On or about October 24, 2011, the Agency subjected Complainant to disability discrimination and reprisal when management announced to co-workers that Complainant would no longer perform dispatch duties and that the majority of his duties would be handled by a junior employee; and
5. On November 15, 2011, the Agency subjected Complainant to disability discrimination and reprisal when it issued Complainant a letter instructing him to report to a District Reasonable Accommodation (DRAC) meeting and to provide additional medical documentation despite the fact that he did not request any new accommodations.
In an investigative affidavit statement, Complainant stated that he was provided with a reasonable accommodation as a result of the settlement agreement for his prior EEO case (Agency No. 4B-020-0041-06). Affidavit A. Complainant stated that the Postmaster was aware of his accommodations because he signed the settlement agreement.
Complainant further stated that the Postmaster requested updated medical documentation in early October 2010, and subsequent requests were made by the Postmaster on October 14, 2010; by the Labor Relations Specialist on November 4, 2010; by the Postmaster on December 6, 2010; by the Labor Relations Specialist on January 2, 2011; by the Postmaster in February 2011; by his supervisor (S1) on April 29, 2011; by the Postmaster and S1 in May 2011 and on July 20, 2011.
Complainant stated that he provided a letter to management dated October 25, 2010, from his physician, but because he did not request a DRAC meeting, he did not provide the requested documentation. Complainant also stated that he was told that operational change was the reason for the requested updated medical documentation, but he believed that management's actions violated the Americans with Disabilities Act.
Regarding claim 2, Complainant stated that management issued him a Letter of Warning on the basis that he failed to scan in the Red Plum flyers on July 27, 2011. Complainant stated that July 27, 2011, was a Wednesday, and flyers come in on Tuesdays. Complainant stated that he believed that he scanned the flyers during the week at issue, and the letter was undeserved.
Regarding claim 3, Complainant stated that on September 5, 2011, he was told to go to the break room and remain there. Complainant further stated that the Postmaster told him that there were too many people and not enough work, and he did not have to clock in on standby -time. He stated that September 23, 2011, was his last day on standby.
Regarding claim 4, Complainant stated that when he arrived to work on October 24, 2011, a co-worker asked him what he was going to do for work because the Postmaster had announced that another employee would be performing dispatch and taking over all of his duties. Complainant stated that he contacted his union representative (U1), and she told him that the Postmaster advised her that Complainant's medical status had changed, and he would no longer be able to perform his duties. Complainant further stated that U1 also told him that the Postmaster had showed her a bid job that included his duties as well as other duties such as bulk mailing, but the Postmaster still had not discussed this with him and no assignment has been posted for him to place a bid.
Complainant also stated that he continued to work his job duties, including performing dispatch duties. Complainant stated that because of his Cerebral Palsy and accompanying Dyscalculia and Dysgraphia,1 he has a reasonable accommodation that provides that no window duties would be assigned to his bid, but the Postmaster is abusing the DRAC process to end his employment with the Agency. Complainant further stated that he is restricted from climbing, lifting more than 70 pounds, and performing tasks that require fine motor skills.
Regarding claim 5, Complainant stated that the DRAC Manager discriminated against him when she scheduled him for a DRAC meeting. Complainant stated that he did not attend the meeting because the meeting was not necessary, and he viewed the meeting as another incident of harassment. He stated that he did not provide any updated medical documentation because his condition had not changed.
S1 stated that she requested updated medical documentation from Complainant and did so at the instruction of the Postmaster. S1 also stated that she was not aware that Complainant had submitted medical documentation and requested documentation in accordance with reasonable accommodation regulations. Regarding claim 2, S1 stated that the Letter of Warning was issued because Complainant failed to scan Red Plum flyers as they arrived, despite receiving instruction more than once to do so. S1 also stated that the Complainant is supposed to scan the flyers when they arrive regardless of the date on which they arrive.
Regarding claim 3, S1 stated that the Postmaster created a schedule that assigned her employees to work during a time frame that had a workload for only one employee. She stated that according to the National Agreement, one person had to be placed on standby in that situation. S1 further stated that the National Agreement requires a regular employee to be paid; therefore Complainant could not be sent home because he did not have any work to do. She stated that Complainant was placed on standby-time so he could get paid.
The Postmaster stated that in late 2010, the mail processing operation was eliminated from his office, and as such, all mail processing positions, including Complainant's were abolished and new positions were created. Affidavit C. The Postmaster further stated that because he was aware that Complainant might not be able to perform the remaining work in the facility once the mail processing operation was eliminated, he was required by law to find out if a reasonable accommodation could be made that would allow Complainant to perform the essential functions of the remaining work.
The Postmaster stated that Complainant was asked to update his medical documentation in connection with the reasonable accommodation request because the documentation on file for him was over four years old. He stated that he did not recall receiving a copy of Complainant's medical documentation, but it would have gone to the Occupational Health Nurse for the South East New England District. The Postmaster further stated the Complainant was asked to provide the updated medical documentation in accordance with the Postal Service's reasonable accommodation process.
Regarding claim 2, the Postmaster stated that Complainant was issued the Letter of Warning because he failed to scan the mail barcode. He further stated that the Red Plum flyers sometimes come in on two different days, but normally arrive on Tuesdays; therefore, the date cited in the Letter of Warning was probably a typographical error.
Regarding claim 3, the Postmaster stated that staffing was changed in the office as a result of the new National Agreement, which eliminated flexible and part-time regular positions. He stated that the schedules created under the new contract had to encompass all of the duties in the facility that needed to be done, and all positions were changed into Sales/Services Associates (SSA) positions, which require servicing window customers, sorting mail, lifting up to 70 pounds, and processing mail. The Postmaster stated that Complainant is not able to perform most of the duties because of his medical restrictions, and as such, he had to create a position.
The Postmaster further stated that on the days that two employees are available and scheduled for duty but he only needs one employee, the National Agreement provides that both employees must be paid. The Postmaster stated that in this case, he had to put one employee on standby while the other employee performed the duties. He stated that because Complainant could not perform the essential functions of a Window Clerk (sorting mail and processing bulk mail), he was placed on standby-time. The Postmaster also stated that Complainant was placed on standby-time so that he could be paid his guaranteed time in accordance with the National Agreement, and that Complainant's last day in standby status was September 22, 2011.
Regarding claim 4, the Postmaster stated that he did not make an announcement to Complainant's coworkers that he would no longer be performing dispatch and that his duties would be handled by a junior employee. The Postmaster stated that during a safety talk, he told employees that all of the part-time regulars and part-time flexible clerk employees would be made regular and that the existing bids would change because of mandatory promotions per the National Agreement. He further stated that he could not recall the date of the safety talk, but no reference was made to the Complainant or his duty assignment. The Postmaster also stated that, at the time he made his statement, Complainant and other employees were performing dispatch duties, Complainant was performing duties within his restrictions, and his bid responsibilities had not been turned over to another employee.
Regarding claim 5, the Postmaster stated that Complainant's position was abolished based on the new National Agreement, and there were four positions for which Complainant could bid. The Postmaster stated that he requested consultation with DRAC because Complainant's restrictions indicated that he would not be able to perform the duties of the new bids. He further stated that the DRAC meeting was scheduled by the DRAC Manager to provide Complainant with the opportunity to engage in the interactive process.
The Labor Relations Specialist stated that she was the DRAC Manager and scheduled an interactive meeting for the Complainant on November 19, 2010. Affidavit D. She further stated that she requested medical documentation from Complainant on November 4, 2011, but did not recall any medical documentation submitted by Complainant. The Labor Relations Specialist stated that she requested medial documentation in accordance with Postal Handbook EL-307, Section 223.2.
A Sales Service Distribution Associate (U1) stated that she did not recall hearing the Postmaster make an announcement about Complainant not performing dispatch and his bid responsibilities being handled by another employee, but rather it was Complainant who mentioned this to her. Affidavit F.
The DRAC Manager stated that she scheduled the DRAC meeting at the request of the Postmaster, and such meetings are standard procedure to request relevant medical documentation. Affidavit E. The DRAC Manager further stated that the DRAC meeting did not take place.
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). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision found that Complainant failed to prove that the Agency subjected him to discrimination or harassment as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the Agency erred when it found that he was not subjected to unlawful discrimination or harassment. Complainant argues that the Postmaster used the removal of CSBCS machines from the Middleboro Post Office as an excuse to attempt to abolish Complainant's Mail Processing Clerk position. Complainant contends that even though the CSBCS machines have been removed, he still performs the same Mail Processing Clerk duties. Complainant further contends that he already provided medical documentation in 2005 and 2006, was provided with a reasonable accommodation, and was not seeking any new reasonable accommodations. Complainant maintains that since the execution of the settlement agreement, he has performed the same duties with the same work schedule. Complainant also contends that the Agency improperly placed him on standby although there was work available within his restrictions. Regarding the Letter of Warning, Complainant contends that he should not have been issued the letter because he scanned flyers and complied with all directives. The Agency requests that we affirm its final decision.
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, � VI.A. (Nov. 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").
ANALYSIS AND FINDINGS
Harassment and Disparate Treatment
Complainant's complaint can be analyzed under both a disparate treatment and hostile work environment analysis. In order to prevail on a disparate treatment claim, 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 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). 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, 120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
To establish a claim of hostile work environment harassment, Complainant must show that: (1) he belongs to a 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 his 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 Agency. See Henson v. City of Dundee, 682 F.2d 897 (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 at 6 (Mar. 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).
For purposes of analysis and without so finding, we assume that Complainant is a qualified individual with a disability and has established a prima facie case of reprisal and disability discrimination. Nonetheless, we find that the Agency provided non-discriminatory explanations for its actions, as detailed above. For example, with respect to claim 1, the Postmaster stated that Complainant was asked to update his medical documentation because the documentation on file for him was over four years old, and there were impending operational changes at the work facility. Regarding claim 2, S1 stated that the Letter of Warning was issued because Complainant failed to scan Red Plum flyers as they arrived, despite receiving instruction more than once to do so.
With respect to claim 3, the Postmaster stated that he put Complainant on standby because he had to put one employee on standby, and Complainant could not perform the essential functions of a Window Clerk (sorting mail and processing bulk mail) during a period when the facility had excess staff. Regarding claim 4, the Postmaster stated that he did not make an announcement to Complainant's coworkers that he would no longer perform dispatch duties or that his duties would be handled by a junior employee. Regarding claim 5, the Postmaster stated that Complainant's position was abolished based on the new National Agreement, and that there were four positions for which Complainant could bid. The Postmaster stated that he requested consultation with DRAC because Complainant's restrictions indicated that he would not be able to perform the duties of the new bids.
Complainant contends that the Agency improperly placed him on standby although there was work available with his restrictions. However, the Agency stated that Complainant was placed on standby because he could not perform the essential functions of a Window Clerk (sorting mail and processing bulk mail), whereas the other employee working during the same time could perform those duties. We note that Complainant did not lose any pay because he was placed on standby. In fact, the Agency placed Complainant on standby so that he could be paid for that time. Also, by his own admission, Complainant was only placed on standby in September 2011 for periods of time that typically lasted from only five minutes to 45 minutes.
Regarding the Letter of Warning, Complainant contends that he should not have been issued the letter because he scanned flyers and complied with all directives. Complainant also maintains that the facility has had "issues with the scanners," and if any error occurred, it was machine-based. However, Complainant has not provided any evidence that shows that he properly scanned the flyers or that the Agency was aware of scanner errors that may have affected Complainant's scanning during the relevant time period.
Complainant maintains that a co-worker asked him what he was going to do for work because the Postmaster had announced that another employee would be performing dispatch duties and taking over all of his duties. However, the co-worker, who was allegedly the eyewitness to this announcement, did not submit a statement to corroborate Complainant's claim. Complainant also maintains that U1 told him that the Postmaster said that Complainant's medical status had changed, and Complainant would no longer be able to perform his duties. Yet, U1 stated that she did not recall hearing the Postmaster announce that another employee would be performing dispatch and taking over all of Complainant's duties; instead, it was Complainant who mentioned this to her. Moreover, the Postmaster denied making such an announcement to Complainant's co-workers. Consequently, we are not persuaded that the Postmaster made the alleged announcement to co-workers or improperly disclosed any medical information about Complainant in this case.
We note that claims 1 and 5 are closely related claims that pertain to the Agency's request that Complainant provide updated medical documentation and meet with the DRAC so that management could ascertain whether work could be provided within his current restrictions. Complainant contends that he already provided medical documentation in 2005 and 2006, was provided with a reasonable accommodation, and was not seeking any new reasonable accommodations. However, the 2006 documentation does not reveal the expected duration of Complainant's condition. When a complainant's medical documentation does not reveal the duration of his condition, an agency is entitled to request updated medical documentation to verify a complainant's continuing need for accommodation after a period of time. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans With Disabilities Act, No. 915.002 at Question 6 (Mar. 1, 1999); Bourque v. Dep't of Veterans Affairs, EEOC Appeal No. 0120080677 (Oct. 29, 2010). Moreover, an employer is permitted to seek documentation where it is necessary to determine that the individual currently has a covered disability for which a reasonable accommodation is necessary. Hoang v. U.S. Postal Serv., EEOC Appeal No. 0120130545 (Apr. 11, 2013) (employers are entitled to request periodic medical updates since medical conditions can change); Ross v. Dept. of the Treasury, EEOC Appeal No. 01982798 (Aug. 2, 2001).
Moreover, the record reflects that during the relevant time period, mail volume at the Middleboro Post Office decreased by over half the previous volume. ROI, p. 177. Also, mail processing equipment was removed from the Middleboro Post Office, resulting in decreased clerk work in the facility. The record further reveals that, in contrast to previous years, all Middleboro clerk bids were assigned window duties, although Complainant was not assigned such duties. We find that, under these circumstances, the Agency made reasonable attempts to evaluate Complainant's ability to perform available work duties within his restrictions. Further, we find that the Agency's requests for Complainant to meet with the DRAC were not hostile or discriminatory, but were good-faith attempts to engage in the interactive process so that it could evaluate whether it could continue to provide Complainant with work within his restrictions.
Complainant maintains that he has performed the same duties with the same work schedule since the execution of the settlement agreement, and that the Agency's actions undermine its contention that it needed him to provide updated medical restrictions and to meet with the DRAC. However, the fact that Complainant has had the same work duties for years does not guarantee him those duties in perpetuity. Bourque v. Dep't of Veterans Affairs, EEOC Appeal No. 0120080677 (Oct. 29, 2010) (although Complainant argued that he was entitled to remain on light duty in perpetuity because he had been on light duty for approximately eight years, the Agency was entitled to request updated information to reassess Complainant's current need for a reasonable accommodation).
Additionally, we note that on January 27, 2012, Complainant also alleged that the Agency breached the settlement agreement when it gave him a position-change notice that reassigned him to another position pending scheme/SSA qualification. In an appellate decision dated August 15, 2012, the Commission found that the Agency's actions did not violate the agreement. Dupuis v. U.S. Postal Serv., EEOC Appeal No. 0120121879. The Commission concluded that Complainant's work facility has experienced several changes, Complainant had held the settlement agreement position for five years, and it would be improper to interpret the agreement to require Complainant's employment in the position identified in the agreement ad infinitum. Additionally, the Commission noted that we have held that there is no breach of a settlement agreement "where an individual has been assigned to a position pursuant to a settlement agreement, has held the position for a period of time, and then is excised out of the position because of agency downsizing that was not anticipated at the time of the agreement." Gish v. Dep't of the Army, EEOC Appeal No. 01950923 (Aug. 14, 1995).
Consequently, we conclude that Complainant failed to prove that the Agency's legitimate, nondiscriminatory explanations for its actions were pretext for unlawful discrimination. Our conclusion that the Agency's actions were not based on Complainant's disability or previous EEO activity precludes us from finding that Complainant was subjected to unlawful harassment. See Pleasant v. Dep't of Housing and Urban Dev., EEOC Appeal No. 0120111048 (Sept. 20, 2012); Oakley v. U.S. Postal Serv.e, EEOC Appeal No. 01982923 (Sept. 21, 2000). Consequently, we find that the Agency properly found that Complainant failed to prove that the Agency subjected him to unlawful discrimination or harassment on any of the alleged bases.
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 decision for the reasons set forth in this decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 10, 2013
Date
1 Dyscalculia is an impairment of the ability to solve mathematical problems, usually resulting from brain dysfunction. The American Heritage Dictionary of the English Language, Fourth Edition (2000). Dysgraphia is a condition that affects an individual's ability to write. Affidavit A, p. 6.
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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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