0120112091
07-11-2012
Linda Towns, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Linda Towns,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120112091
Hearing Nos 450-2010-0079X
450-2010-00194X
Agency Nos. 4G-760-0124-08
4G-760-0152-08
DECISION
On March 9, 2011, Complainant filed an appeal from the Agency's February 1, 2011, final order concerning her 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 deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Letter Carrier at the Agency's Crowley Post Office facility in Fort Worth, Texas. Due to an on-the-job injury in 2004, Complainant was offered a limited duty job which consisted of work in the clerk craft.
In 2007, the Postmaster was placed in a long term detail resulting in a number of "Officers in Charge" at the Agency. Complainant believed that one particular Officer in Charge (OIC) subjected her to discrimination.
On November 3, 2008 and July 1, 2009, Complainant filed two EEO complaints alleging that the Agency discriminated against her on the basis of disability (back and leg) and perceived disability when1:
1. From July 28, 2008 to February 1, 2010, Complainant was subjected to a hostile work environment. Specifically, Complainant indicated that the OIC watched Complainant closely, gave her a hard time due to her medical condition, and acted in a hostile manner towards her.
2. On July 28, 2008, Complainant was not allowed to return to work;
3. On July 28, 2008, Complainant was denied a reasonable accommodation when she was not permitted to return to work;
4. The Agency failed to secure Complainant's medical documentation and disclosed her confidential medical information to an employee who did not need to know.
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). Complainant timely requested a hearing and the AJ held a hearing on November 15, 2010, and issued a decision on December 14, 2010.
The AJ first addressed Complainant's claim (4) regarding the unlawful disclosure of medical information. The AJ noted that the Union Steward learned that the OIC had planned on assigning Complainant clerk duties. The Union Steward challenged the assignment of the clerk duties to Complainant because it would take work away from current clerks and she believed the work was outside of Complainant's medical restrictions. In response to the Union Steward's protest, the OIC took Complainant's medical documentation and provided the information to the Union Steward. The OIC informed Complainant that she provided the Union Steward with Complainant's limitations. The OIC testified that she provided the information to the Union Steward to show that Complainant could perform the duties and to avoid a grievance threatened by the Union Steward. The AJ also noted that the OIC's testimony was more credible than the Union Steward's testimony. Notwithstanding, the AJ determined that the OIC improperly disclosed all of Complainant's medical information to the Union Steward.2 As such, the AJ concluded that Complainant established that the Agency violated the Rehabilitation Act by improperly disclosing Complainant's medical information.
Complainant also asserted that the Agency improperly stored medical records. The AJ found Complainant's testimony was vague. The AJ noted that when pressed, Complainant was not able to provide sufficient information to sustain her burden of proof to establish a violation of the Rehabilitation Act.
The AJ turned to Complainant's claims (2) and (3) regarding her assertion that she was not returned to work. The record indicated that Complainant was injured on the job in July 2008, which resulted in a cast being placed on her leg from her ankle to her mid-thigh. Due to the cast, Complainant was not permitted on the workroom floor.
To the extent Complainant asserted that she was denied a reasonable accommodation, the AJ noted that the Complainant was substantially limited as to her back injury. However, Complainant was not permitted to work due to her broken kneecap and the fact that she had to wear a cast. As such, the AJ found that Complainant had not sought a reasonable accommodation for Complainant's medical condition covered under the Rehabilitation Act. To the extent Complainant asserted a claim of disparate treatment in claim (2), the AJ found that Complainant failed to establish a prima facie case of discrimination.
Finally, the AJ turned to Complainant's claim of harassment. Complainant alleged that the OIC created a hostile work environment for individuals with medical restrictions. Specifically, Complainant alleged that the OIC subjected her to close scrutiny, screamed at Complainant, refused Complainant entry into the building, and informed upper management that Complainant was a "disruptive" employee. The AJ found that Complainant established that these events were true. The AJ also found that Complainant established a nexus between the alleged events and her medical condition. The AJ then turned to issue of whether the alleged events were sufficient or pervasive enough to create a hostile work environment. Based on the testimony by Complainant, the OIC, and Co-workers, the AJ found that Complainant only provided information for a short period of time, only three weeks. During that three week period, the AJ determined that Complainant asserted that management looked over her shoulder, criticized her work, and yelling and screaming at Complainant. The AJ noted that other employees testified that they were afraid to get involved with Complainant or even be seen speaking to Complainant. Based on the pervasive nature of the events over a short period of time, the AJ concluded that Complainant had been subjected to a hostile work environment based on her disability.
Therefore, the AJ concluded that the Agency discriminated against Complainant when she was subjected to a hostile work environment and the disclosure of medical information in violation of the Rehabilitation Act. The AJ then turned to the appropriate remedies. As for compensatory damages, the AJ noted that Complainant testified that due to the stress from wok, Complainant suffered weight loss, aggravated colinitus, increased blood pressure, and sleeplessness. She also averred that she became more argumentative and withdrawn. The AJ indicated that Complainant failed to provide any timeframe for these manifestations of the stress and the medical documentation did not show any causation that the manifestations were connected to Complainant's work stress. Considering the short period of time and Complainant's testimony, the AJ awarded Complainant $6,000 in non-pecuniary damages. The AJ stated that Complainant did not show she was entitled to compensatory damages with respect to the medical disclosure. Specifically, the AJ found that Complainant did not provide any evidence that she was harmed by the event.
The AJ turned to the award of Attorney's fees and costs. Complainant's attorney requested a rate of $ 450.00 for 113.9 hours for a total of $ 51,255.00, and $ 509.33 in costs. The AJ reduced the hours requested in the following manner:
* 5.8 hours for work done prior to the filing of the formal complaint;
* 4.0 hours for vagueness;
* 4.0 hours for excessive trial preparation.
Therefore, the AJ reduced the award of Attorney's fees hours to 100.1 hours. The AJ further reduced the hours by 20% for Complainant did not prevail on all four of the claims raised.
As to the Attorney's hourly rate, the AJ found that her rate of $ 450.00 was excessive and unsupported. The AJ determined that the Attorney did not provide any evidence to support her "completely arbitrary figure." Further, the AJ held that the Complainant's fee agreement provided no hourly rate. Based on information provided by the Agency, the AJ authorized an hourly rate of $ 246.00. Accordingly, the AJ awarded $ 20,209.01 for the Attorney's fees and costs.
In addition, the AJ ordered that the Agency "cease and desist any and all unlawful employment actions against Complainant." The Agency shall also post a notice of the finding of discrimination.
The Agency subsequently issued a final order adopting the AJ's findings and conclusions.
Complainant asserted that the AJ improperly determined that the Agency's denial of reasonable accommodation was not a violation of the Rehabilitation Act. Complainant argued that she had a comparator who was provided an accommodation and the AJ erred in finding that Complainant did not establish a prima facie case of discrimination.
Complainant appealed the AJ's decision regarding the remedies ordered. Complainant requested that the OIC be precluded from supervising Complainant. Complainant pointed to all the evidence provided in the record which established the hostile work environment and argued that the AJ should have ordered that the OIC be separated from Complainant. In addition, Complainant asked that the Commission order the Agency to take disciplinary action against the OIC. Complainant also asked that the Commission provide her with compensatory damages for the disclosure of medical information for it would deter the Agency from taking such action again. Failure to provide for damages, Complainant argues would make a mockery of the law. In addition, Complainant asks that the Commission increase the compensatory damage award of $ 6,000.00 to $ 85,000.00 which is comparable to awards issued by the Commission in similar cases.
Finally, Complainant contested the AJ's award of Attorney's fees specifically that the AJ erred in lowering the Attorney's hourly rate and hours. Complainant noted that she provided evidence in support of the $ 450.00 hourly rate. In particular, the Attorney provided affidavits from four attorneys from the area who attested that $ 450.00 per hour was a reasonable rate. The Attorney also challenged the AJ's reduction of 8 hours for vagueness and for trial preparation. The Attorney noted that the AJ did not specify which hours were "vague." Further, as to the trial preparation, the Attorney noted that the matter was pending for a long time before the AJ and she required the whole time to review the case including witnesses, discovery, and motions all in preparation for the hearing. In addition, the Attorney challenged the AJ's reduction of 20% of her hours because Complainant did not prevail in all of her claims.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (November 9, 1999).
Reasonable Accommodation
As an initial matter, Complainant asserted that the AJ erred in finding no discrimination as to Complainant's claim that she was denied a reasonable accommodation. The majority of Complainant's argument on appeal referred to the AJ's finding that Complainant's proffered comparator was not a comparator. We note that in a claim of denial of reasonable accommodation, comparator evidence is not relevant for reasonable accommodations are based on individual assessments. Furthermore, Complainant argued that she should have been allowed to wear a cast from her ankle to her mid-thigh on the workroom floor. The AJ found that the Agency's reasons for not allowing Complainant on the workroom floor were reasonable. The AJ noted that the Agency's decision was based on the congested small space of the workroom and nature of the work that is conducted on the workroom floor. Complainant merely argued that the AJ's findings were incorrect. We find that Complainant's arguments alone are not sufficient to establish that that the substantial evidence does not support the AJ's findings and conclusions. Therefore, we determine that Complainant has not shown that the AJ erred in finding no discrimination as to claims (2) and (3).
Remedies
We note that the Agency and Complainant agree with the AJ's finding that the Agency violated the Rehabilitation Act with respect to claims (1) and (4). Therefore, the only issue before the Commission is the remedies ordered by the AJ.
Remedies Regarding the OIC
Complainant asserted that the AJ failed to separate Complainant from the OIC or order disciplinary action against the OIC. The Commission finds that the AJ's orders were not sufficient to address the findings of harassment or the Rehabilitation Act. As such, the Commission modifies the AJ's orders as listed below.
Compensatory Damages
As to Complainant's claim that the AJ's award of compensatory damages was not sufficient to make her whole. Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant who establishes his or her claim of unlawful discrimination may receive, in addition to equitable remedies, compensatory damages for past and future pecuniary losses (i.e., out of pocket expenses) and non-pecuniary losses (e.g., pain and suffering, mental anguish). 42 U.S. C. � 1981a(b)(3). For an employer with more than 500 employees, such as the Agency, the limit of liability for future pecuniary and non-pecuniary damages is $300,000. Id.
The particulars of what relief may be awarded, and what proof is necessary to obtain that relief, are set forth in detail in EEOC Notice No. 915.002, Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991 (July 14, 1992). Briefly stated, Complainant must submit evidence to show that the Agency's discriminatory conduct directly or proximately caused the losses for which damages are sought. Id. at 11-12, 14; Rivera v. Dep't of the Navy, EEOC Appeal No. 01934157 (July 22, 1994). The amount awarded should reflect the extent to which the Agency's discriminatory action directly or proximately caused harm to the complainant and the extent to which other factors may have played a part. EEOC Notice No. N 915.002 at 11-12. The amount of non-pecuniary damages should also reflect the nature and severity of the harm to Complainant, and the duration or expected duration of the harm. Id. at 14.
In Carle v. Dep't of the Navy, the Commission explained that "objective evidence" of non-pecuniary damages could include a statement by the complainant explaining how he or she was affected by the discrimination. EEOC Appeal No. 01922369 (January 5, 1993). Statements from others, including family members, friends, and health care providers could address the outward manifestations of the impact of the discrimination on the complainant. Id. The complainant could also submit documentation of medical or psychiatric treatment related to the effects of the discrimination. Id. Non-pecuniary damages must be limited to the sums necessary to compensate the injured party for the actual harm and should take into account the severity of the harm and the length of the time the injured party has suffered from the harm. Carpenter v. Dep't of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995).
Complainant has claimed that she should be awarded $ 85,000.00 in non-pecuniary compensatory damages. We note that Complainant did not provide any evidence or argument that she was harmed by the unlawful medical disclosure. Therefore, we find no justification to augment the AJ's award based on the medical disclosure.
As noted by the AJ, Complainant provided a list of manifestations of the stress caused by the workplace from July 2008 through February 2010. However, it appears that some of Complainant's manifestations were caused by events outside of the unlawful harassment. The AJ found that the harassment occurred over a three week period. Taking into account the evidence of non-pecuniary damages submitted by Complainant, we find her request for $ 85,000.00 to be excessive. Rather, the Commission finds that complainant is entitled to non-pecuniary damages in the amount of $ 6,000.00, as ordered by the AJ. This amount takes into account the severity of the harm suffered, and is consistent with prior Commission precedent. See White v. Dep't of Veterans Affairs, EEOC Appeal No. 01950342 (June 13, 1997) ($5,000.00 in non-pecuniary damages where Complainant's testimony and his psychologist's report indicated that the harassment that Complainant endured, which took both sexual and nonsexual forms, led Complainant to suffer from anxiety, depression, emotional fatigue, occasional nightmares, and insomnia); Bell v. Dep't of the Army, EEOC Appeal No. 01A13150 (August 8, 2002) (awarding $5,000 where complainant experienced stress and worry, and received medical treatment for five months). Yonker v. Dep't of Transp., EEOC Appeal No. 01A05979 (January 9, 2001) (providing Complainant who was subjected to retaliatory harassment with $6,500 in compensatory damages for lack of concentration, trouble sleeping, headaches, anxiety, and a skin rash).
Attorney's Fees and Costs
Finally, Complainant challenged the AJ's award of Attorney's fees and costs. By federal regulation, the agency is required to award attorney's fees for the successful processing of an EEO complaint in accordance with existing case law and regulatory standards. EEOC Regulation 29 C.F.R. � 1614.501(e)(1)(ii). To determine the proper amount of the fee, a lodestar amount is reached by calculating the number of hours reasonably expended by the attorney on the complaint multiplied by a reasonable hourly rate. Blum v. Stenson, 465 U.S. 886 (1984); Hensley v. Eckerhart, 461 U.S. 424 (1983).
There is a strong presumption that the number of hours reasonably expended multiplied by a reasonable hourly rate, the lodestar, represents a reasonable fee, but this amount may be reduced or increased in consideration of the degree of success, quality of representation, and long delay caused by the Agency. 29 C.F.R. � 1614.501(e)(2)(ii)(B). The circumstances under which the lodestar may be adjusted are extremely limited, and are set forth in Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 11-7. (November 9, 1999). A fee award may be reduced: in cases of limited success; where the quality of representation was poor; the attorney's conduct resulted in undue delay or obstruction of the process; or where settlement likely could have been reached much earlier, but for the attorney's conduct. Id. The party seeking to adjust the lodestar, either up or down, has the burden of justifying the deviation. Id. at p. 11-8.
Title VII authorizes the award of reasonable attorney's fees, including for an attorney's processing of an agency appeal regarding an AJ's award of fees. 29 C.F.R. � 1614.501(e); EEO Management Directive for 29 C.F.R. Part 1614 (EEO MD 110). Ch. 11, � VI.A.3. To establish entitlement to attorney's fees, Complainant must first show that she is a prevailing party. See Buckhannon Bd. and Care Home, Inc. v. W.Va. Dep't of Health and Human Resources, 532 U.S. 598 (2001). A prevailing party for this purpose is one who succeeds on any significant issue and achieves some of the benefit sought in bringing the action. See Davis v. Dep't of Transp., EEOC Request No. 05970101 (Feb. 4, 1999) (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). A finding of discrimination raises a presumption of entitlement to an award of attorney's fees. 29 C.F.R. � 1614.501(e)(i).
Attorney's fees shall be paid for services performed by an attorney after the filing of a written complaint. Id. An award of attorney's fees is determined by calculating the loadstar, i.e., by multiplying a reasonable hourly fee times a reasonable number of hours expended. Hensley, 461 U.S. at 433; 29 C.F.R. � 16l4.501(e)(2)(ii)(B). "There is a strong presumption that this amount represents the reasonable fee." 29 C.F.R. � 1614.501 (e)(2)(ii)(B). A reasonable hourly fee is the prevailing market rate in the relevant community. Blum v. Stenson, 465 U.S. 886 (1984). A petition for fees and costs must take the form of a verified statement required by the Commission's regulations at 29 C.F.R. � 1614.501(e)(2)(i)
Attorney's fees may not be recovered for work on unsuccessful claims. Hensley, 461 U.S. at 434-35. Courts have held that fee applicants should exclude time expended on "truly fractionable" claims or issues on which they did not prevail. See Nat'l Ass'n of Concerned Veterans v. Sec'y of Defense, 675 F.2d 1319, 1327 n.13 (D.C. Cir. 1982). Claims are fractionable or unrelated when they involve distinctly different claims for relief that are based on different facts and legal theories. Hensley, 461 U.S. at 434-35 In cases where a claim for relief involves "a common core of facts or will be based on related legal theories," however, a fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit. Id. at 435. "The hours spent on unsuccessful claims should be excluded in considering the amount of a reasonable fee only where the unsuccessful claims are distinct in all respects from the successful claims." See EEO MD-110, Ch. 11, � 6.A.7 (citation omitted).
Upon review, we find that the AJ erred in reducing the Attorney's hourly rate from $ 450.00 to $ 246.00. We note that the Attorney has provided four affidavits from attorneys stating the hourly rate was reasonable. First, the AJ erred in stating that the Attorney did not provide support for her hourly rate. The record included affidavits from other attorneys in the area clearly supporting the Attorney's hourly rate. Furthermore, the AJ based the decision to reduce the hourly rate on an average hourly rate provided by the Texas State Bar Association. Such a rate is an average which fails to take into account the specific experience of the Attorney in this case. The Attorney has provided affidavits from attorneys who explain that the Attorney's credentials, experience and locality warrant an hourly rate of $ 450.00.
As to the hours expended, we note that the Attorney did not challenge the AJ's reduction of hours for work done prior to the Formal Complaint. We agree that the Attorney that there is no support for the AJ's reduction of 8 hours for vagueness or for excessive time to prepare for the hearing. As for the vague hours, the AJ failed to point out which hours were considered vague. The Attorney indicated that she spent over four days, 25.7 hours to preparing for the hearing. We do not find the time expended to be excessive. Therefore, we find that the Attorney's request for 113.90 hours should be reduced by 5.8 hours which is 108.1 hours. The AJ further reduced the hours by 20%. The AJ noted that Complainant did not prevail on all the claims; therefore, the Attorney's hours should be reduced. We find that a 20% is appropriate in that the Attorney did not show that the denial of reasonable accommodation was so intertwined with the claims upon which Complainant prevailed. Therefore, the total number of hours expended is 86.48 hours. Accordingly, we find that the Attorney should receive $ 38,916.00 in fees and $ 509.33 in costs for a total of $ 39,415.49.
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 implementation of the AJ's findings and conclusions. However, we MODIFY the AJ's remedy as ORDERED below.
ORDER (C0610)
The Agency is ordered to take the following remedial actions.
1. The Agency shall pay Complainant $ 6,000.00 in non-pecuniary compensatory damages;
2. The Agency shall pay the Attorney $ 39,415.49 in fees and costs;
3. The Agency shall ensure that the OIC is separated from Complainant and does not supervise her in the future.
4. The Agency is directed to conduct training for the OIC who was found to have violated the Rehabilitation Act. The Agency shall address these employees' responsibilities with respect to harassment and keeping medical documentation and information confidential.
5. The Agency shall consider taking disciplinary action against the OIC. 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.
6. The Agency shall complete all of the above actions within 30 calendar days from the date on which the decision becomes final.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented.
POSTING ORDER (G0610)
The Agency is ordered to post at its Crowley Post Office 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 (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), 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 (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 11, 2012
__________________
Date
1 Some of the claims occurred before January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008, which made a number of significant changes to the definition of disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. Those matters that occurred in 2008, the Commission will use the analytical framework as it existed before the enactment of the ADA Amendments Act of 2008, to determine whether Complainant is an individual with a disability.
2 The AJ noted that all the OIC needed to do was to explain to the Union Steward that medical documentation was confidential and that the issue of whether Complainant could do the position was solely for Complainant. The determination should only be discussed between the OIC and Complainant, not the Union Steward.
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0120112091
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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