0120090266
12-14-2011
Raymond A. Petted, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Raymond A. Petted,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120090266
Hearing Nos. 410-2007-00275X, 410-2008-00435X
Agency Nos. 2001-0508-2006-10257, 2001-0508-2007-100364
DECISION
Complainant timely filed an appeal from the agency’s September 30, 2008
final order concerning his equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.,
the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. § 621 et seq., and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The appeal
is accepted pursuant to 29 C.F.R. § 1614.405(a). For the following
reasons, the Commission AFFIRMS in part and REVERSES in part the Agency's
final order.
ISSUES PRESENTED
1) Whether the EEOC Administrative Judge’s (AJ) issuance of a decision
without a hearing was appropriate; and
2) Whether the Complainant established that the Agency failed to provide
him with a reasonable accommodation when he was not reassigned to a
vacant Motor Vehicle Operator position.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
an Air Conditioning Equipment Mechanic, WG-10, at the Agency’s Atlanta
Medical Center in Decatur, Georgia. In 2001, Complainant suffered an
injury on the job when he was exposed to unsafe levels of bacteria.
As a result, due to this incident, Complainant suffers from asthma,
which causes difficulty breathing when he is exposed to mold, dust,
bacteria, and harsh chemicals.
On December 18, 2005, and on April 26, 2006, Complainant submitted
requests for reasonable accommodation to the EEO manager at the
facility. Complainant requested, as an accommodation for his asthma,
that the amount of time he worked on air handlers be reduced from seven
hours to three hours per day. Subsequently, a Reasonable Accommodation
Review Committee (RARC) was convened by the Agency to determine if it
could accommodate Complainant. A consulted Industrial Hygienist advised
the RARC that there was no apparatus available to prevent Complainant
from inhaling toxic irritants while working on air conditioning equipment
in his current position.
The RARC concluded, in a March 21, 2006, memorandum, that Complainant
would not be able to work in his current position. The RARC also concluded
that Complainant was a “qualified individual with a disability”
as defined by the Rehabilitation Act and that the major life activity
of breathing was substantially limited. As such, the RARC recommended
that Complainant move to a new job assignment. On March 27, 2006, the
Agency’s Engineering Service staff meeting agenda listed 10 vacant
positions, including the position of Electronic Mechanic, WG-11, as
well as a Vehicle Operator position. In May 2006, the Agency began
to search for vacant positions for Complainant. On June 1, 2006, the
Agency assigned Complainant to a GS-6 clerical position with rotating
shifts. Complainant refused to work this new position because he has
sleep apnea, and because of this condition, he could not work rotating
shifts. Further, the Department of Labor also deemed this new position
to be unsuitable for Complainant as an accommodation.
On August 17, 2006, Complainant applied for the position of Electronic
Mechanic, WG-11. However, on October 19, 2006, Human Resources notified
Complainant that although qualified, he had not been referred to the
selecting official for the position of Electronic Mechanic. There were
seven applicants and only two were referred to the selecting official. As
such, Complainant was not selected for the position. When the Agency
could not a find another job for which Complainant was qualified,
he was assigned to work in the Engineering Office to answer phones and
file documents. Subsequently, Complainant’s application for disability
retirement was approved on December 18, 2006, and Complainant retired.
On July 10, 2006, and December 24, 2006, Complainant filed EEO complaints
alleging that he was discriminated against on the bases of disability,
age (58), and reprisal when: (1) he was denied reasonable accommodation
for his disability on June 1, 2006, when he was assigned the duties of
a GS-6 File Clerk; (2) he was subjected to harassment, when (a) he was
not allowed to have a key to access tools and parts, (b) his supervisor
followed him around all day, (c) his supervisor only checked his work,
and no other coworker’s work, to see if his work was done correctly,
(d) his service chief said that he would never get any training, (e)
he was never included as part of the team and never informed of what
was happening in the service, (f) his supervisor threatened to change
his shift so he could do more cleaning, (g) he was asked on a weekly
basis when he was going to retire, (h) he was denied overtime unless it
involved cleaning dirty air handlers, (i) he was denied access to the
Heating, Ventilation, Air Conditioning (HVAC) trouble shooting computer,
(j) he was not allowed to work with a contractor or coworkers on HVAC
contracts or equipment, and (k) he was assigned more cleaning of dirty
equipment after protesting about a coworker who was reassigned to
answer the telephone; and (3) he was not selected for the position of
Electronic Mechanic because he did not rank high enough to be referred
for final consideration.
At the conclusion of the investigation, Complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. Over the Complainant's objections, the AJ assigned to
the case granted the Agency’s February 26, 2008, motion for a decision
without a hearing and issued a decision without a hearing in favor of
the Agency on September 17, 2008. The Agency subsequently issued a final
order adopting the AJ’s finding that Complainant failed to prove that
he was subjected to discrimination as alleged.
The AJ found that Complainant failed to establish a prima facie
based on his disability, age, and in reprisal for prior protected
activity. Specifically, the AJ determined that Complainant failed to
identify a similarly-situated individual as a comparator outside of his
protected class. Further, the AJ determined that assuming, arguendo,
that Complainant established prima facie cases, the Agency articulated
legitimate, nondiscriminatory reasons for its actions. The AJ further
found that these legitimate, nondiscriminatory reasons were not pretext
for discrimination.
As to disability accommodation, the AJ found that the Agency took
sufficient steps in an attempt to accommodate Complainant. In particular,
the AJ determined that the Agency helped Complainant perform the
essential functions of his position by providing the assistance of
another employee. Additionally, the AJ found that the Agency convened
the RARC committee to see if it were possible to accommodate Complainant
in his current position. The AJ further found that when the committee
determined that accommodation was not possible for Complainant in his
current position, they offered him another position.
Lastly, the AJ determined that Complainant was not subjected to a hostile
work environment. Specifically, the AJ determined that the agency’s
actions did not rise to a level sufficient enough to constitute a hostile
work environment.
CONTENTIONS ON APPEAL
On appeal, Complainant reiterates the fact that the Agency failed to
accommodate him for his disability. Complainant contends that the Agency
only offered him one job for a year and a half, which the Department of
Labor ruled unsuitable for him. Complainant contends he was not offered
an Engineering Technician position, nor was he offered any of the other
job openings in the Engineering Department, including a Vehicle Operator
position. Complainant also contends that management made no attempt to
restructure his position as requested by his doctor. Complainant further
contends that his doctor indicated that he could have stayed in his Air
Conditioning Mechanic position so long as the time he spent cleaning
the equipment was reduced.
Additionally, on appeal Complainant contends that he was wrongfully not
selected for the Electronics Mechanic position, which would have allowed
him an accommodation for his respiratory condition. Complainant alleges
that the two employees referred for the position had no education or
experience in electronics whereas his resume reflects that he had taken
college level courses in electronics. Complainant alleges that he was
qualified by Human Resources but not interviewed. Complainant further
alleges that one of the employees selected also sat on the selection
panel. Lastly, Complainant contends that he was constructively discharged
and forced into retirement.1
On appeal, the Agency contends that, among other things, it made several
attempts to accommodate Complainant before he retired. Further, the
Agency contends that Complainant’s alleged incidents of harassment do
not rise to the level of a hostile work environment. Also, the Agency
contends that, although Complainant is disabled, he is not a “qualified
individual with a disability.”
STANDARD OF REVIEW
In rendering this appellate decision we must scrutinize the AJ's legal
and factual conclusions, and the Agency's final order adopting them,
de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an
appeal from an Agency's final action shall be based on a de novo review
. . .”); see also EEO Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), Ch. 9, § VI.B. (Nov. 9, 1999) (providing that an administrative
judge's “decision to issue a decision without a hearing pursuant to
[29C.F.R. § 1614.109(g)] will be reviewed de novo”). This essentially
means that we should look at this case with fresh eyes. In other words,
we are free to accept (if accurate) or reject (if erroneous) the AJ's,
and Agency's, factual conclusions and legal analysis - including on the
ultimate fact of whether intentional discrimination occurred, and on
the legal issue of whether any federal employment discrimination statute
was violated. See id. at Chap. 9, § VI.A. (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
Decision without a Hearing
We must first determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. The Commission's
regulations allow an AJ to issue a decision without a hearing when
he or she finds that there is no genuine issue of material fact. 29
C.F.R. § 1614.109(g). This regulation is patterned after the summary
judgment procedure set forth in Rule 56 of the Federal Rules of Civil
Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence
of the non-moving party must be believed at the summary judgment stage
and all justifiable inferences must be drawn in the non-moving party's
favor. Id. at 255. An issue of fact is “genuine” if the evidence is
such that a reasonable fact finder could find in favor of the non-moving
party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material”
if it has the potential to affect the outcome of the case.
If a case can only be resolved by weighing conflicting evidence, issuing
a decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally,
an AJ should not rule in favor of one party without holding a hearing
unless he or she ensures that the party opposing the ruling is given
(1) ample notice of the proposal to issue a decision without a hearing,
(2) a comprehensive statement of the allegedly undisputed material facts,
(3) the opportunity to respond to such a statement, and (4) the chance
to engage in discovery before responding, if necessary. According to the
Supreme Court, Rule 56 itself precludes summary judgment “where the
[party opposing summary judgment] has not had the opportunity to discover
information that is essential to his opposition.” Anderson, 477 U.S. at
250. In the hearing context, this means that the administrative judge
must enable the parties to engage in the amount of discovery necessary to
properly respond to any motion for a decision without a hearing. Cf. 29
C.F.R. § 1614.109(g)(2) (suggesting that an administrative judge
could order discovery, if necessary, after receiving an opposition to a
motion for a decision without a hearing). After a review of the record,
the Commission finds that the AJ's issuance of a decision without a
hearing was appropriate because there is no genuine issue of material
fact. However, we find that the AJ erred in finding in favor of the
Agency, as the record reflects that Complainant was denied reasonable
accommodation for his disability as discussed below.
Denial of Reasonable Accommodation (Claim 1)
To establish that complainant was denied a reasonable accommodation,
Complainant must show that: (1) he is an individual with a disability,
as defined by 29 C.F.R. § 1630.2(g); (2) he is a “qualified”
individual with a disability, pursuant to 29 C.F.R. § 1630.2(m); and
(3) the agency failed to provide a reasonable accommodation. See EEOC
Enforcement Guidance on Reasonable Accommodation and Undue Hardship
under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17,
2002) (Reasonable Accommodation Guidance). Because the Agency has found
that Complainant is an individual with a disability, this issue is not
a matter in dispute herein and will not be addressed.
The record indicates that the Agency did not consider Complainant to
be a qualified individual with a disability with respect to his Air
Conditioning Equipment Mechanic position. The Agency determined that
there was no apparatus available to prevent Complainant from inhaling
toxic irritants while working on air conditioning equipment in his
current position. Thus, the Agency determined that Complainant could
not perform the essential functions of the position.
We note that the discussion of “qualified” does not end at
Complainant's position. The term “qualified individual with a
disability,” with respect to employment, is defined as a disabled
person who, with or without a reasonable accommodation, can perform
the essential functions of the position held or desired. 29 C.F.R. §
1630.2(m). The term “position” is not limited to the position
held by the employee, but also includes positions that the employee
could have held as a result of reassignment. Therefore, in determining
whether an employee is “qualified,” an agency must look beyond the
position which the employee presently encumbers. The record reflects
that Complainant asked to be assigned to a position available in the
Engineering Department. The record reflects that at least nine positions
were available as of March 27, 2006, in the Engineering Department,
including the position of Vehicle Operator. The Agency does not dispute
that Complainant could perform the essential functions of the Vehicle
Operator position. Further, there is nothing in the record reflecting
that the Vehicle Operator position would have affected Complainant’s
asthma condition. Therefore, we find that Complainant is “qualified”
within the meaning of the Rehabilitation Act. We also note that the RARC
found that Complainant was qualified individual with a disability.2
In reassignment cases like this, Complainant has an evidentiary burden to
establish that it is more likely than not (i.e., by a preponderance of the
evidence) that there were vacancies during the relevant time period into
which complainant could have been reassigned. See Hampton v. U.S. Postal
Serv., EEOC Appeal No. 01986308 (Aug. 1, 2002). Here, Complainant pointed
to vacant positions listed on an Engineering Service staff meeting agenda
dated March 27, 2006. In particular, Complainant pointed to a Motor
Vehicle Operator position as well as an Electronic Mechanic position,
WG-11, listed on the agenda. We note that the Agency states that the
Motor Vehicle Operator position was filled on April 26, 2006. However,
on March 21 2006, the RARC recommended that management perform a search
for all vacant positions for which Complainant might be qualified for,
which was more than one month before the Motor Vehicle Operator position
was actually filled.3 Therefore, we find that Complainant established
that the position of Vehicle Operator was a vacant position for which
he was qualified for at the time he sought accommodation. As such,
the Agency should have assigned him to that position.
We also note that when provided as a reasonable accommodation,
a reassignment must be to a vacant position equivalent in terms of
pay, status, and other related factors, including benefits, if the
employee is qualified for the position. See Reasonable Accommodation
Guidance. The GS-6 Clerical position that the Agency assigned him was
clearly not equivalent to his prior Air Conditioning Equipment Mechanic
position. Therefore, we find that the Agency failed to make a good faith
effort to accommodate Complainant for his disability and violated the
Rehabilitation Act. 4
Nonselection (Claim 3)
To prevail in a disparate treatment claim such as this, Complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must
generally establish a prima facie case by demonstrating that she was
subjected to an adverse employment action under circumstances that would
support an inference of discrimination. Furnco Constr. Co. v. Waters,
438 U.S. 567, 576 (1978). To ultimately prevail, Complainant must prove,
by a preponderance of the evidence, that the Agency's explanation is a
pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502,
519 (1993); Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256
(1981); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842
(Nov. 13, 1997); Pavelka v. Dep't of the Navy, EEOC Request No. 05950351
(Dec. 14, 1995).
Assuming, arguendo, that Complainant established a prima face case of
discrimination based on age, disability, and in reprisal for prior
protected activity, we find that the Agency articulated legitimate
nondiscriminatory reasons for not selecting Complainant to the Electronic
Mechanic position. The Agency explained that Complainant was not referred
to the selecting official for consideration because he did not have the
experience in electronics that the individuals referred had. The record
reflects that the selectee for the position was previously an electrician
and, as such, he had the electronic experience the Agency sought.
Upon review, we find that Complainant failed to rebut the Agency's
legitimate, nondiscriminatory reasons for not selecting him for the
position. Further, Complainant failed to show that his qualifications
for the position were plainly superior to the selectee's qualifications
or that the Agency's action was motivated by discrimination. See Wasser
v. Dep’t of Labor, EEOC Request No. 05940058 (Nov. 2, 1995). Based
on the foregoing, we find that Complainant has failed to show that the
Agency's action was motivated by discrimination as he alleged.
Harassment (Claim 2)
To establish a claim of 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 classes; (4) the harassment affected
a term or condition of employment and/or had the purpose or effect of
unreasonably interfering with the work environment and/or creating an
intimidating, hostile, or offensive work environment; and (5) there
is a basis for imputing liability to the employer. See Henson v. City
of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must
have been “sufficiently severe or pervasive to alter the conditions of
[complainant's] employment and create an abusive working environment.”
Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The
harasser's conduct should be evaluated from the objective viewpoint of
a reasonable person in the victim's circumstances. Enforcement Guidance
on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8,
1994). We concur with the AJ in finding that management's actions were not
sufficiently severe or pervasive to alter the conditions of Complainant's
employment or to create an abusive working environment.
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 order adopting the AJ’s decision finding no discrimination as to
claims 2 and 3. However, we REVERSE the Agency’s final order adopting
the AJ’s decision with respect to claim 1. As such, we REMAND the
complaint for further processing in accordance with our Order below.
ORDER
The Agency shall take the following remedial action within sixty (60)
days of the date this decision becomes final:
1. The Agency is directed to conduct training for the management officials
who denied Complainant's request for reasonable accommodation. The
training shall focus on the responsibilities under the Rehabilitation Act.
2. The Agency shall consider taking disciplinary action against the
management officials who denied Complainant's request for reasonable
accommodation. 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.
3. The Agency shall offer Complainant a position as a Vehicle Operator,
or a substantially equivalent position in the Engineering Department. As
Complainant voluntarily retired from the Agency in 2006, Agency management
shall initially determine whether Complainant is interested in returning
to work for the Agency before engaging in the interactive process.
4. The Agency is directed to award Complainant back pay (with interest,
if applicable) for any wages and benefits lost between the date he
was assigned to the GS-6 clerical position on June 1, 2006, instead
of the Vehicle Operator position and the date he is either reemployed
by the Agency or rejects the Agency's offer of reemployment to the
Vehicle Operator, or a substantially equivalent position. The Agency
shall determine the appropriate amount of back pay, interest, and other
benefits due to Complainant, pursuant to 29 C.F.R. § 1614.501(c). The
Complainant shall cooperate in the Agency's efforts to compute the
amount of back pay and benefits due, and shall provide all relevant
information requested by the Agency. If there is a dispute regarding
the exact amount of back pay and/or benefits, the Agency shall issue
a check to the Complainant for the undisputed amount within sixty (60)
calendar days of the date the Agency determines the amount it believes
to be due. The Complainant may petition for enforcement or clarification
of the amount in dispute. The petition for clarification or enforcement
must be filed with the Compliance Officer, at the address referenced in
the statement entitled “Implementation of the Commission's Decision.”
4. The Agency shall conduct a supplemental investigation pertaining to
Complainant's entitlement to compensatory damages. The Agency shall afford
complainant sixty (60) days to submit additional evidence in support
of a claim for compensatory damages. Complainant shall submit objective
evidence (pursuant to the guidance given in Carle v. Dep’t of the Navy,
EEOC Appeal No. 01922369 (Jan. 5, 1993)) in support of his claim. Within
forty-five (45) days of its receipt of Complainant's evidence, the Agency
shall issue a final decision determining Complainant's entitlement to
compensatory damages, together with appropriate appeal rights.
POSTING ORDER (G0610)
The Agency is ordered to post at its Agency’s Atlanta Medical Center in
Decatur, Georgia. 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)(I)(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
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 (Nov. 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
77960, Washington, DC 20013. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. § 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610)
This is a decision requiring the Agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the
date you filed your complaint with the Agency, or filed your appeal
with the Commission. If you file a civil action, you must name as the
defendant in the complaint the person who is the official Agency head or
department head, identifying that person by his; or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. “Agency” or “department” means the national
organization, and not the local office, facility or department in
which you work. Filing a civil action will terminate the administrative
processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29
U.S.C. §§ 791, 794(c). The grant or denial of the request is within the
sole discretion of the Court. Filing a request for an attorney with the
Court does not extend your time in which to file a civil action. Both
the request and the civil action must be filed within the time limits
as stated in the paragraph above (“Right to File a Civil Action”).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 14, 2011
Date
1 The Commission notes that Complainant raises the allegation of
constructive discharge for the first time on appeal. Complainant is
advised to initiate contact with an EEO Counselor if he wishes to pursue
additional allegations. The Commission will not address new claims raised
for the first time in an appeal.
2 On appeal the Agency argues that Complainant was not a qualified
individual with a disability even though the RARC found otherwise.
3 Although Complainant wanted to be assigned to the Electronic Mechanic
position, WG-11, reassigning Complainant to that position would have
constituted giving him a promotion as his previous position was graded the
at WG-10 level. See Reasonable Accommodation Guidance (“Reassignment
does not include giving an employee a promotion. Thus, an employee must
compete for any vacant position that would constitute a promotion.”).
4 Because the Commission finds that the Agency violated the Rehabilitation
Act, we will not address Complainant's claim of discrimination based
on age or in reprisal for prior protected EEO activity. A finding of
discrimination based on age or in reprisal for prior protected activity
would not alter the remedies awarded to Complainant.
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0120090266
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120090266