Marybeth C.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of Defense (Defense Threat Reduction Agency), Agency.

Equal Employment Opportunity Commission

Aug 20, 2019

0120180749 (E.E.O.C. Aug. 20, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Marybeth C.,1
Complainant,

v.

Dr. Mark T. Esper,
Secretary,
Department of Defense
(Defense Threat Reduction Agency),
Agency.

Appeal No. 0120180749

Hearing No. 570-2015-00385X

Agency No. DTRA13J9012

DECISION

On December 22, 2017, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
November 22, 2017 final order 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., Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Science and
Technology Manager, GS-13, at the Agency’s Diagnostic, Detect, and Disease Surveillance
Division facility in Fort Belvoir, Virginia.

On December 12, 2014, Complainant filed an EEO complaint alleging that the Agency subjected
her to discrimination and harassment/a hostile work environment because of her national origin

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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(Greek-Cypriot), sex (female), disability, age and/or retaliation for prior protected EEO activity
when:

(1) On or about June 30, 2013, her supervisor and two J1 personnel harassed and intimidated
her by isolating her in a room and presenting her with an unjustified Letter of Counseling
that accused her of refusing to attend a meeting.

(2) From early 2009 to the present, she was not selected for promotional opportunities for
which she believed she was qualified.

(3) On or about January 31, 2014, she received her annual performance appraisal for the
period of October 1, 2012 to September 31, 2013, where she was rated by her supervisor
as “met.” Complainant regarded this rating as unfair and additional reprisal/retaliation
against her for engaging in protected EEO activity. Additionally, she contended that her
supervisor’s malicious statement should not have been included in her evaluation.

(4) [Reprisal only alleged.] An Agency employee spread false allegations that she had been
arrested, including to the Agency’s security office, and/or made other allegations to the
Agency’s security office. Management officials disseminated information about her prior
EEO activity at the Naval Research, including about a lawsuit she brought, and at DTRA.

(5) On October 24, 2014, she received a decision notice suspending her for 3 days, beginning
October 27, 2014, through October 29, 2014; on October 30, 2014, via email, her
telework was canceled; on December 16, 2014, 40 hours of documented overtime was
not counted and Complainant learned that her time card was altered and the requested
overtime was removed; on December 29, 2014, Complainant’s request for travel
authorization to a technical program committee meeting was canceled; on December 30,
2014, Complainant was demeaned by her first-line supervisor during a meeting when he
told her to “shut up.”

(6) On April 23, 2015, management issued Complainant a Letter of Counseling regarding her
situational telework and threatened her removal; on April 27, 2015, management
proposed a 14-day suspension based on misconduct involving discourtesy toward a
supervisor and failure to follow instructions; on April 30, 2015, management canceled
previously approved travel orders for a CBD S&T conference in St. Louis, Missouri;
during the period, April 21 to 28, 2015, management: (a) refused to allow Complainant
the opportunity to telework; (b) refused to pay Complainant for work performed at home;
(c) denied her request for sick leave to cover a medical appointment; and (d) placed
Complainant in an AWOL status between April 19, 2015 and May 2, 2015, although she
had sufficient leave and a signed telework agreement; on or about April 16, 2015, and
again during the period of June 1 to 12, 2015, management rejected Complainant’s
“unscheduled overtime,” twice rejected her timecards and refused to compensate her; on
June 12, 2015, Complainant was issued a Notice of Decision on Proposed Suspension.

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(7) Travel expenses incurred for official travel were canceled by management and sick leave
and annual leave were taken from leave balances.

(8) She was denied a reasonable accommodation when the Agency, on January 13, 2015,
only partially granted her reasonable accommodation request for a flexible schedule and
the ability to telework, which was made on December 2, 2014, and then regularly denied
Complainant situational or medical telework, including on April 9, 2015, April 20, 2015,
and April 21, 2015; and on April 28, 2015, a management official stated that, “I am
placing your reasonable accommodation for telework in abeyance for here months
effective immediately.”

The Agency accepted these claims and conducted an investigation and a supplemental
investigation.2

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 Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing
and the AJ held a hearing on November 1, 2016, and issued a decision on August 15, 2017.

The Agency subsequently issued a final order adopting the AJ’s finding that Complainant proved
that the Agency subjected her to discrimination on the basis of her disability when it held her
telework in abeyance for three months and that it unlawfully retaliated against her for
participation in prior EEO activity when Agency officials had a general discussion about her
prior EEO activity. However, the AJ concluded that Complainant failed to sustain her burden of
proof with respect to all other claims and all other bases of discrimination.

The Agency’s final decision adopted the AJ’s decision that provided, as relief, that the Agency
pay $28,622.00 in attorney’s fees and reimbursement of costs of $361.70 for expenses related to
computer research; pay Complainant $1,991.14 in past pecuniary compensation damages and
$5,000 in non-pecuniary compensatory damages; post notices provided with the AJ’s decision;
conduct 8 hours of in-person training on all discrimination laws to all Agency supervisors and
managers; and consider taking appropriate disciplinary action against certain responsible
management officials.

The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant seeks higher compensatory damages and higher attorney’s fees for her
successful claims and appeals the denial of her unsuccessful claims.

2 Complainant alleged additional instances of discrimination and/or harassment that she dropped
during the course of the proceedings, prior to the issuance of the hearing decision.
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She argues she is entitled for higher compensatory damages related to being denied telework for
3 months, as she was required to walk long distances, which aggravated her symptoms, causing
her to need 2 surgeries, and coming to work triggered her major depressive disorder. She also
argues that management’s discussion of her EEO activity damaged her professional reputation.
She asks for $180,795.11 in pecuniary damages and “at least $200,000” in non-pecuniary
damages.

Complainant also seeks attorney’s fees of $353,137.60, based on the attorneys’ hourly rates and
the number of hours worked in total on all of Complainant’s claims. She argues that the
attorney’s hours should not be reduced to account for her unsuccessful claims because her
successful claims were closely related to those on which she did not prevail, and this lawsuit
cannot be viewed as a compilation of discreet claims where the successful claims are distinct in
all respects from the unsuccessful claims. She also argues that she should be allowed fees for her
second attorney, for the second attorney, because his services were not duplicative.

Complainant also asserts that the AJ should have found for Complainant on other claims. She
argues that the following acts committed by the Agency were per se violations: (1)
management’s report of negative information to the Agency’s security office, (2) the proposed
suspension for discourteous conduct to a supervisor, and (3) the instance involving a manager
telling Complainant to, “shut up,” during a meeting occurred right after Complainant stated,
“You are discriminating against me and it is not right.”

Complainant also argues that she should prevail on the non-selections, noting that she was
unable to prove she was a superior candidate in these cases because the report of investigation
did not include sufficient information. She asserts that the Agency had an obligation to maintain
pertinent evidence and failed to do so, warranting an adverse inference.

In response, the Agency asserts that the AJ’s award of damages and attorney’s fees were
appropriate. With respect to pecuniary damages, the Agency asserts that, during the hearing,
Complainant was evasive about her medical costs and notes that some of the costs were from
injuries suffered years prior to the Agency’s discrimination, and some costs were for food
poisoning, a dentist visit, OB/GYN care, none of which are related to the issues here. The
Agency asserts that Complainant’s reasonable accommodation consisted of situational telework,
a work place closer to the restroom, and a parking place closer to her work area, and, during the
abeyance, Complainant was only denied situational telework once; she refused several parking
spaces offered to her; and she rejected the cubicle closer to the restroom because she preferred
having an office. The Agency notes that, while Complainant argues that coming to work caused
severe increases in symptoms related to her medical condition, she still continued to request
travel to professional conferences.

With respect to attorney’s fees, the Agency argues that the award was appropriate because when
a complainant prevails on some, but not all, of the claims, it is appropriate to reduce the amount
of attorney’s fees depending on the degree of success relative to Complainant’s goals. Time
spent on unsuccessful claims should be excluded from a reasonable fee.
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With respect to the alleged per se violations, the Agency asserts that ill-advised comments that
would not chill an employee’s desire or ability to engage in the EEO process are not pro se
violations. Regarding the non-selections, the Agency notes that throughout the investigation or
discovery process, Complainant did not indicate the record was deficient, nor did she move to
compel the Agency to produce the information she now claims is lacking from the record. The
Agency argues that Complainant only argued for an adverse inference only when she realized
that she failed to sustain her burden of proof at the hearing; she first raised this argument in her
written closing argument and, raises it now upon appeal. The Agency asserts that the AJ’s
decision is factually based and should be sustained.

ANALYSIS AND FINDINGS

Standard of Review

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. (Aug. 5, 2015).

Non-selection Claims

Complainant alleged the Agency treated her disparately in not selecting her for two positions. A
claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, she must
first establish a prima facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a
factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802 at n.13;
Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Tex. Dep’t of Cmty. Affairs
v. Burdine. 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears
the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the
agency acted on the basis of a prohibited reason. See St. Mary's Honor Ctr. v. Hicks, 509 U.S.
502 (1993).

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Even if we assume that Complainant established a prima facie case of discrimination with
respect to her claims, her claims ultimately fail, as we find that the Agency articulated legitimate,
non-discriminatory reasons for its actions. Although Complainant alleged she was discriminated
against in not being selected for numerous promotional opportunities since 2009, her hearing
testimony focused on two positions. As mentioned on appeal, little investigation or discovery
was conducted as to these alleged non-selections and Complainant argues for an adverse
inference determination against the Agency. The record supports the AJ’s findings that
Complainant did not object to the AJ’s finding that the record reflected an appropriate and
impartial investigation; she did not file a Motion for Sanctions claiming that the record was
incomplete; and she also conducted discovery but did not file a Motion to Compel or a Motion
for Sanctions. Therefore, we agree with the AJ’s finding that Complainant was precluded from
asking the Commission to impose sanctions and the decision to decline to draw an adverse
inference and we find that Complainant has failed to meet her burden of disputing the selectees’
qualifications or establishing that she had superior qualifications as to either position. See Ash v.
Tyson Foods, Inc., 546 U.S. 454 (2006).

Therefore, we find that Complainant has not established by a preponderance of the evidence, that
the legitimate, non-discriminatory reasons articulated by the Agency were a pretext for unlawful
discrimination or motivated by some unlawful discriminatory animus with respect to her claims
of disparate treatment. We affirm the AJ’s findings that the Agency did not discriminate in these
instances.

Retaliation

As discussed above, Complainant also alleges that the Agency committed unlawfully retaliated
against her when management reported negative information to the Agency’s security office;
issued the proposed suspension for discourteous conduct to a supervisor; and told Complainant
to, “shut up,” during a meeting occurred right after Complainant stated, “You are discriminating
against me and it is not right.”

The Commission has stated that adverse actions need not qualify as “ultimate employment
actions” or materially affect the terms and conditions of employment to constitute retaliation.
EEOC Compliance Manual. Section 8: Retaliation (May 20. 1998); Burlington Northern and
Santa Fe Railway Co. v. White, 548 U.S. 53 (2006) (finding that the anti-retaliation provision
protects individuals from a retaliatory action that a reasonable person would have found
“materially adverse,” which in the retaliation context means that the action might have deterred a
reasonable person from opposing discrimination or participating in the EEOC charge process).
Comments that, on their face, discourage an employee from participating in the EEO process
violate the letter and spirit of the EEOC regulations and evidence a per se violation of the law.
Binseel v. Dep't of the Army, EEOC Request No. 05970584 (Oct. 8, 1998) (complainant told
that filing an EEO suit was the wrong way to go about getting a promotion).

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With respect to a manager telling Complainant to, “shut up,” when she accused him of
discrimination, we find the record shows this outburst was in response to Complainant’s verbal
attack on the manager. The meeting was about Complainant’s time and attendance issues and
working hours. With respect to the incident involving management’s report of negative
information to the Agency’s security office, the record shows Complainant was required to
maintain a security clearance and when security personnel approached management about
Complainant’s behavior, in relation to her eligibility to maintain her clearance, management was
required to respond.

With respect to the proposed suspension for discourteous conduct to a supervisor, we note that
the fact that Complainant has engaged in protected EEO activity does not immunize her from
appropriate disciplinary action nor does it prove that the Agency disciplined her because she
participated in protected activity. “[P]articipation in the EEO process does not shield employees
from uniformly applied standards of conduct and performance; nor are the statutory anti-
retaliatory provisions a license for employees to engage in misconduct.” Berkner v. Dep't of
Commerce, EEOC Petition No. 0320110022 (June 23, 2011). See Martinez v. General Svcs.
Admn., EEOC Appeal No. 0120122326 (Nov. 15, 2012) (mere fact that complainant engaged in
protected activity does not immunize her from appropriate disciplinary action); Hobbs v Dep't of
Agriculture, EEOC Appeal No. 0120073032 (Mar. 25, 20l0) (where complainant was charged
with absence without leave, placed on leave restriction, and suspended for one day, Commission
found that complainant did not follow leave procedures and record lacked discriminatory
animus). The proposed suspension dealt with Complainant’s discourteousness in
communications addressing her reasonable accommodation, as opposed to the matter of the
reasonable accommodation itself.

We affirm the AJ’s findings that the Agency did not unlawfully retaliate against Complainant in
these instances.

Compensatory Damages

Compensatory damages are awarded to compensate a complaining party for losses or suffering
inflicted due to the discriminatory act or conduct. See Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 at Chapter 11, § VII (citing Carey v. Piphus 435
U.S. 247, 254 (1978) (purpose of damages is to "compensate persons for injuries caused by the
deprivation of constitutional rights"). Types of compensatory damages include damages for past
pecuniary loss (out-of-pocket loss), future pecuniary loss, and nonpecuniary loss (emotional
harm). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 at
Chapter 11, § VII.B; and Goetze v. Dep't. of the Navy, EEOC Appeal No. 01991530 (Aug. 23,
2001).

Pecuniary losses are out-of-pocket expenses incurred because of the agency’s unlawful action,
including job-hunting expenses, moving expenses, medical expenses, psychiatric expenses,
physical therapy expenses, and other such quantifiable expenses.
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Past pecuniary losses are losses incurred prior to the resolution of a complaint through a finding
of discrimination, or a voluntary settlement, whereas future pecuniary damages are those likely
to occur after the resolution of the complaint. See Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 at Chapter 11, § VII.B (Aug. 5, 2015) (internal citations
omitted).

In a claim for pecuniary compensatory damages, a complainant must demonstrate, through
appropriate evidence and documentation, the harm suffered because of the agency’s
discriminatory action. Objective evidence in support of a claim for pecuniary damages includes
documentation showing actual out-of-pocket expenses with an explanation of the expenditure.
The agency is only responsible for those damages that are clearly shown to be caused by the
agency’s discriminatory conduct. To recover damages, a complainant must prove that the
agency’s discriminatory actions were the cause of the pecuniary loss. Id. (internal citations
omitted).

Non-pecuniary losses are losses that are not subject to precise quantification, including
emotional pain and injury to character, professional standing, and reputation. Id. There is no
precise formula for determining the amount of damages for non-pecuniary losses except that the
award should reflect the nature and severity of the harm and the duration or expected duration of
the harm. See Loving v. Dep’t of the Treasury, EEOC Appeal No. 01955789 (Aug. 29, 1997).
The Commission notes that non-pecuniary compensatory damages are designed to remedy the
harm caused by the discriminatory event rather than to punish the agency for the discriminatory
action. Furthermore, compensatory damages should not be motivated by passion or prejudice or
be “monstrously excessive” standing alone but should be consistent with the amounts awarded in
similar cases. See Ward-Jenkins v. Dep’t of the Interior, EEOC Appeal No. 01961483 (Mar. 4,
1999).

We find the AJ’s findings with respect to the amount of pecuniary damages is supported by
substantial evidence. Complainant submitted a total of $23,893.64 in medical expenses for 2015,
the year her reasonable accommodation was held in abeyance. The AJ noted that these expenses
reflect the fact that Complainant had pre-existing conditions and degenerative orthopedic
conditions that existed prior to the Agency’s discrimination and apportioned them. Because he
found the Agency held Complainant’s accommodation in abeyance for three months (25% of the
year), he calculated that $5,973.41 is 25% of Complainant’s medical expenses for that portion of
the year. He apportioned that amount, attributing one-third ($1,991.14) to each of the following:
pre-existing conditions, degenerative conditions, and the Agency’s discrimination. We find this
reasonable, especially as it takes into account the harm suffered because of the Agency’s
discriminatory action, separate and apart from Complainant’s unrelated medical expenses.

We note that, on appeal, Complainant asserts that she had medical expenses total $180,795.11,
including two surgeries, that were attributable to this period of abeyance. However, we agree
with the Agency that that the record does not establish the full extent of these medical expenses
was attributable to the Agency’s discriminatory conduct.

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With respect to non-pecuniary compensation damages, the AJ awarded Complainant $2,500 for
each instance of discrimination. With respect to the Agency’s denial of reasonable
accommodation for 3 months, we find this amount to underrepresent the severity of the harm
suffered. In similar cases where the complainant was denied a reasonable accommodation to
alleviate the impact of similar orthopedic symptoms, $5,000 has been found to be a more
appropriate award of damages. See Complainant v. Dep’t of Health and Human Serv’s., EEOC
Appeal No. 2019001754 (May 7, 2019) ($5,000 award in non-pecuniary compensatory damages
for a three-month delay of an ergonomic chair); and Pleasant v. Dep't of Housing and Urban
Development, EEOC Appeal No. 01A52841 (May 2, 2006) ($5,000 award in non-pecuniary
compensatory damages for denial of an ergonomic chair).

With respect to the finding that that the Agency’s management discussed Complainant’s EEO
activity, we also find that $2,500 is insufficient. In comparison to similar cases involving a
finding that management’s statements about a complainant constituted a per se violation, we find
an award of $5,000 is more appropriate, in consideration of the harm suffered. See Complainant
v. Dep’t of Homeland Security, EEOC Appeal No. 0720150010 (September 2, 2016).

Attorney’s Fees

To obtain an award of attorney's fees, a complainant must be considered a prevailing party. See
Texas State Teachers Ass'n v. Garland I.S.D., 489 U.S. 782 (1989). A prevailing party for
purposes of obtaining attorney's fees is one who succeeds on any significant issue and achieves
some of the benefit sought in bringing the action. Davis v. Dep't of Transp., EEOC Request No.
05970101 (Feb. 4, 1999) (citing Hensley v. Eckerhart, 461 U.S. 427, 433 (1983)).

An award of attorney's fees is determined by calculating the lodestar, i.e., by multiplying a
reasonable hourly fee times a reasonable number of hours expended. Bernard v. Dep't of
Veterans Affairs, EEOC Appeal No. 01966861 (July 17, 1998) (citing Hensley v. Eckerbart, 461
U.S. 424 (1983)). In determining the number of hours expended the Commission recognizes that
the attorney “is not required to record in great detail the manner in which each minute of his time
was expended.” Id. However, the attorney does have the burden of identifying the subject
matters on which he spent his time by submitting sufficiently detailed and contemporaneous time
records to ensure that the time spent was accurately recorded. Id.

We find the amount of the AJ’s award of attorney’s fees to be supported by substantial evidence.
The attorney sought compensation for 517.9 hours for himself and a second attorney. The AJ
disallowed 40.2 hours submitted as excessive for the tasks charged. The AJ did not allow any
fees for the second attorney, finding his services were duplicative and not warranted for the two
minor successful claims. The AJ determined that these two claims represented 10 percent of the
attorney’s remaining 477.77 hours or 47.77 hours. At the attorney’s rate of $600 per hour, the
AJ found Complainant’s attorney was entitled to $28,662.00. In so doing. the AJ noted that
Complainant prevailed on only two of 23 claims that he characterized as “minor claims involving
two internal areas that the Agency admitted to that required little to no developmental work.”
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The AJ determined that the Agency’s discriminatory actions were not inextricably intertwined
with the other issues in the case so as to warrant the consideration of additional time and
resultant fees. The AJ properly applied the formula for determining fees. We note that
Complainant was ultimately successful on less than 10 percent her numerous claims and find the
AJ’s method and calculation of the number of billable hours as attorney’s fees to be reasonable
for the successful claims.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we MODIFY the Agency’s final decision and REMAND the
matter to the Agency for further processing in accordance with this decision and the ORDER
below.

ORDER

Within thirty (30) calendar days of the date this decision was issued, the Agency shall pay
Complainant $1,991.14 in pecuniary compensatory damages, $10,000 in non-pecuniary
compensatory damages, $28,622.00 in attorney’s fees, and $361.70 for reimbursement of costs
related to computer research, minus any amounts already paid.

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 that the corrective action has been implemented.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)
Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered
corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP)
supporting documents in the digital format required by the Commission, referencing the
compliance docket number under which compliance was being monitored. Once all compliance
is complete, the Agency shall submit via FedSEP a final compliance report in the digital format
required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must
contain supporting documentation when previously not uploaded, and the Agency must send a
copy of all submissions to the Complainant and his/her representative.
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.
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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.
Failure by an agency to either file a compliance report or implement any of the orders set forth in
this decision, without good cause shown, may result in the referral of this matter to the Office of
Special Counsel pursuant to 29 CFR § 1614.503(f) for enforcement by that agency.
ATTORNEY'S FEES (H1016)
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 the date this decision was issued. The Agency shall then process the claim for
attorney's fees in accordance with
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of
service on the other party.
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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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests.
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Such requests do not alter the time limits for filing a civil action (please read the paragraph titled
Complainant’s Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

August 20, 2019
Date