0120070258
07-15-2009
Rex Dominguez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Rex Dominguez,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120070258
Hearing No. 370-2005-00011X
Agency No. 4F-945-0231-03
DECISION
On October 13, 2006, complainant filed an appeal from the agency's
September 15, 2006 notice of final action 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. and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a City Carrier at the agency's Station A Post Office in Berkley,
California. Complainant suffered an on-the-job injury in 1996.
Complainant was diagnosed with a torn meniscus in his right knee.
He re-injured his knee on April 25, 2001. As a result of his knee
injury, the agency issued complainant a limited duty job offer dated
June 27, 2003, which he accepted on July 2, 2003. While serving in his
limited duty position complainant did not carry mail for a full route.
In September 2003, complainant was diagnosed with plantar fasciitis.
Complainant had difficulty walking as a result of his plantar
fasciitis and was restricted for a period of time from carrying mail.
During the time he could not carry mail, complainant received various
work assignments including processing Undeliverable Business Bulk Mail
(UBBM) mail.
The record reveals S1 became the Supervisor of Customer Services at
Station A in June 2003. Complainant reported to S1, except from January
2004, to May 2004, when S1 was on a temporary assignment to a different
location. While S1 was on a temporary assignment, complainant reported
to Acting Manager, Customer Services (S2) who otherwise served as S1's
supervisor. After her temporary assignment, S1 returned to Station A
in May 2004, and then left Station A permanently in June 2004, to become
a Supervisor, Customer Services at the Berkeley Main Post Office.
On November 6, 2003, complainant filed an EEO complaint, which was
subsequently amended, alleging that he was discriminated against and
subject to harassment between July 2003 and February 2004, on the bases
of race (Asian Pacific Islander), national origin (Filipino), disability
(right knee), and in reprisal for prior protected EEO activity when:
1. On July 10, 2003, August 2, 2003, and September 19-20, 2003, S1 created
the "Chair theory of no street time" and violated complainant's two-hour
street time limitation;1
2. On August 23, 2003, S1 charged complainant with .36 units of Leave
Without Pay (LWOP) without his knowledge;
3. On December 9, 2003, S1 directed complainant to work outside under
a tent in the parking lot;
4. On December 9, 2003, complainant moved inside the office and at
approximately 5:30 p.m., S2 asked him why he was working in the office
and told him to go back into the tent;
5. On December 10 and 11, 2003, complainant worked outside in the back
alley;
6. On an unspecified date prior to February 16, 2004, S1 mishandled
complainant's pay account by charging him annual leave instead of sick
leave for a scheduled medical appointment and charged him 30 minutes
annual leave for a lunch he did not take; and
7. On February 1, 2004, complainant became aware that the Postmaster
allegedly provided a co-worker with false/non-factual information about
him.
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 and the AJ held a hearing on March 16 - 17, 2004,
April 14, 2004, and May 12, 2005. The AJ issued a decision on August
21, 2006, finding complainant failed to prove that he was subjected to
discrimination as alleged.
In his decision, the AJ found that complainant did not demonstrate that he
was disabled, had a record of a disability, or was regarded as disabled.
Assuming complainant was disabled, the AJ found complainant did not show
that he was treated differently than individuals not within his protected
group, or that the agency failed to make a reasonable accommodation for
his disability. The AJ noted that during the relevant time, the agency
accommodated complainant by providing him limited duty work assignments
tailored to his medical restrictions. The AJ noted the agency's limited
duty job offer dated June 27, 2003, specified that his job duties were
designed to fit his medical restrictions, including working 8 hours per
day; not working more than 40 hours per week; walking not to exceed 2
hours per day; and lifting up to 20 pounds.
With regard to his claim of reprisal discrimination, the AJ found both S1
and S2 testified credibly that they were unaware of complainant's prior
EEO activity at the time of the matters alleged. The AJ noted that even
if complainant could establish an inference of reprisal discrimination,
the evidence does not support his reprisal-based claims.
The AJ found complainant did not meet his burden with respect to his
claims related to his performance and conduct including his using a stool,
working out-of-doors, being charged LWOP, and erroneously being charged
with annual leave. Specifically, the AJ found there is no evidence
in the record indicating that complainant was aggrieved or otherwise
suffered a tangible employment action as a result of these matters.
With respect to the claim that S1 instructed complainant to use a stool to
help him deliver mail, the AJ noted that S1 testified that she believed
that by sitting on a stool, complainant could accomplish his route and
stay within his limitations. S1 testified that she knew of a similar
case of a mail carrier who, by using a stool under similar circumstances,
was more productive and could deliver more mail. Although instructed to
use a stool, complainant declined and was not disciplined for refusing
to use the stool. The AJ noted there was no evidence complainant was
ever disciplined for refusing to work beyond his limitations whenever
his interpretation of those limitations differed from the interpretation
of his managers.
With regard to the claim that he was charged LWOP, the AJ noted that
S1 testified credibly that she placed complainant on LWOP status on the
date in question because complainant, who had worked part of the day at
one office, did not show up to work at the main office to complete his
daily assignment as scheduled.
With regard to the claim of processing undeliverable waste mail (part
of claims 3, 4, and 5), the AJ noted S2 testified that in order to
accommodate complainant's restrictions, one of the duties the agency
gave him is to process undeliverable mail. S2 stated this task was
occasionally performed outside by various employees for work management
and logistical purposes and that the assignment of this task was made
without regard to an employee's protected status. The AJ recognized
complainant was required to work in inclement weather in early December
of 2003; however, S1 and S2 testified that mail was delivered by carriers
who often worked outside in inclement weather. The AJ found no evidence
that the assignment was given to complainant intentionally because of
his race, disability, or prior EEO activity, or that it was severe or
pervasive enough to constitute unlawful harassment.
With regard to the claim that the agency disclosed private information,
the AJ found that "due to a mailing error, medical information about
complainant's temporary foot condition was sent to one of his colleagues."
The AJ also noted that complainant was erroneously charged with annual
leave instead of sick leave on one occasion, an error which was corrected
after it was determined that complainant had supported his absence with
medical documentation. The AJ found that these actions were not tangible
employment actions.
The AJ found that, even assuming complainant was aggrieved by one of
these matters, complainant offered no evidence indicating that he was
treated less favorably than similarly situated employees of a different
protected status or that his protected status in any way influenced the
agency's actions. Moreover, the AJ noted that the agency articulated
legitimate, non-discriminatory reasons for its actions which complainant
failed to show were pretext for discrimination. Thus, the AJ found
complainant failed to meet his burden of proof with respect to his claims
of disparate treatment.
Moreover, the AJ noted that with regard to complainant's harassment
claim, the incidents described over the seven-month period did not result
in a tangible adverse employment action; or, if they did, were clearly
explained by the agency by non-discriminatory reasons. After considering
all the incidents alleged, the AJ found, whether considered separately
or cumulatively, the incidents were not severe or pervasive. The AJ
also found complainant was not subject to adverse treatment that was
reasonably likely to deter him from engaging in protected activity.
Assuming the matters constituted harassment, the AJ found that complainant
failed to show that any of the incidents at issue were motivated by
his race, national origin, disability, or EEO activity. The AJ found
complainant was treated the same by S1 and S2 as other employees at
Station A. The AJ noted that complainant and other witnesses testified
that many employees had difficulties with S1's management style. The AJ
noted the record contained a letter signed by 21 employees representing
various protected categories including those without disabilities and
without prior EEO activity, in which the employees complained about the
management style of Supervisor A and accused S1 of creating a hostile
work environment. The AJ concluded complainant failed to meet his burden
of proof with regard to the claim of harassment.
The agency subsequently issued a notice of final action on September
15, 2005. The agency fully implemented the AJ's finding that complainant
failed to prove that he was subjected to discrimination as alleged.
On appeal, complainant contends the AJ erred in finding he was not
disabled. Complainant notes his well-documented history of a permanent
and stationary impairment, a torn meniscus in his right knee, which began
when he was injured-on-the-job in 1996, and was re-injured in April 2001.
Complainant states that he was able to carry mail within his restrictions
when accommodated by prior supervisors. However, he states that when
S1 became his supervisor in July 2003, everything changed and he claims
S1 and S2 harassed him after he requested S1 adhere to his medical
restrictions.
Complainant states that he has engaged in protected EEO activity.
He states that beginning on July 10, 2003, he told S1 that the mail
she was giving him to carry exceeded his medical restrictions and he
explained to her what his limitations were. Additionally, he states that
on August 22, September 18 - 20, 2003, he again told S1 that the mail she
was giving him violated his medical restrictions. Complainant explains
he also informed the Officer-in-Charge, S2, and ultimately the Berkeley
Postmaster that the agency was not adhering to his medical restrictions.
Complainant contends that his requests that the agency adhere to his
medical restrictions constituted a request for reasonable accommodation
and constituted protected activity under the opposition clause.
Additionally, complainant states that on September 22, 2003, he contacted
an agency EEO Counselor to file a complaint and avers that this was
protected activity under the participation clause. Complainant also
notes that he filed a grievance with his union on September 28, 2003,
claiming that Station A management failed to adhere to his medical
restrictions. Complainant states that this grievance also constituted
protected activity.
In contrast to the AJ's decision, complainant claims he was subject
to adverse treatment. For example, he states on August 23, 2003,
S1 charged him LWOP for .36 of an hour for an incident on August 16,
2003, when she claimed that she told him to go to the main Berkley Post
Office and he refused. Complainant states that Witness X confirmed that
S1 never told him to go to the main office. Complainant states that on
September 18, 2003, when he said that he was unable to deliver all his
mail, S2 asked him if he was looking for attention. Complainant claims
that on September 19, 2003, S1 yelled at him to take a chair with him on
his walking route so he could deliver mail to the "apartment gangboxes."
Complainant states on September 20, 2003, S1 followed him on his route.
Complainant claims that in October and November 2003, S1 continued to
ride him and told him to walk faster, told him to finish his route,
accused him of taking the keys to a vehicle, accused him of leaving the
back door open, accused him of not listening to her, and told him he
needed to be trained on how to punch in and out of the clock.
Complainant states that as a result of the treatment by management
he ended up in the emergency room. After a week out on "stress leave"
complainant states that S2 left him a message stating that he better send
in the paperwork or else he would be charged AWOL. Complainant explains
that on December 9, 2003, the first day he returned from one month of
"stress leave," S2 instructed him to process the UBBM mail outside in
a tent on a cold, rainy, windy day. Complainant states he continued to
process UBBM mail outside in inclement weather on December 10 - 11 per
S2's instructions.
Complainant argues he has established a nexus between his prior
protected activities and the agency's adverse treatment. He states
there was a close temporal proximity between the incidents constituting
protected activities and the adverse conduct of the agency in this case.
Moreover, complainant claims the AJ incorrectly found complainant was
not aggrieved.
In response to complainant's appeal, the agency argues that the AJ
correctly decided that complainant was not subject to discrimination as
alleged.2 The agency stated that the hearing established that prior
to S1's arrival at Station A, management was lax and Station A was
receiving significant customer complaints. The agency stated that when
S1 arrived she was stricter in enforcing the rules and procedures than
prior management. The agency states there is nothing showing that S1
or S2 behaved differently with complainant than they did with employees
of different races, a different national origin, who were not disabled,
or who had no prior protected activity.
With regard to his claim (claim 7) that the agency improperly disclosed
medical information when a co-worker received an October 8, 2003 letter
signed by the Postmaster, the agency disputes that the letter contained
confidential medical information. Moreover, assuming that the letter
contained confidential medical information, the agency states complainant
has no evidence to show that the Postmaster was the one who sent the
letter in question to his co-worker. Thus, the agency argues without
evidence proving that the Postmaster mailed the letter in question,
complainant cannot show that the Postmaster violated the confidentiality
of his medical information.
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, � VI.B. (November 9, 1999).
Upon review, we find the agency articulated legitimate, non-discriminatory
reasons for its actions which complainant failed to show were a pretext
for discrimination.3 With regard to complainant's claim in issue (1)
that beginning July 10, 2003, S1 violated his medical restrictions,
the record reveals during the relevant time the agency accommodated
complainant by providing him limited duty work assignments tailored to his
medical restrictions. Specifically, the agency's June 27, 2003 limited
duty job offer, specified that his job duties were designed to fit his
medical restrictions, including: working 8 hours per day; not working
move than 40 hours per week; walking not to exceed 2 hours per day; and
lifting up to 20 pounds. The offer specified the assignment must be
performed "in accordance with [his] physical limitations as described
by [his] treating physician." As a result, S1 gave instructions to
the carriers (who were sorting the mail for complainant to deliver),
to give complainant mail equivalent to two hours of mail delivery time.
There is no evidence in the record that S1 was involved in determining
how much mail was given to complainant by the carriers; rather, this
was determined based on examination of the route books. While there
was some dispute on the dates in question whether complainant was
given more delivery mail than could be done in two hours, we note when
complainant returned to the station with undelivered mail which he said
he could not deliver because it would force him to exceed his two-hour
walking restriction, he was not forced to deliver this mail and was not
disciplined for failing to deliver the mail.
With regard to S1's suggestion that complainant take a chair/stool with
him when he was delivering mail at the apartments on his route, the record
reveals she suggested this as a means to assist complainant in completing
his duties and staying within his medical restrictions. S1 testified
that she knew of another carrier who used a stool to sit while delivering
mail in similar circumstances. The record shows complainant did not
use the stool and was not disciplined for refusing to use the stool.
With regard to issue (2), complainant claimed that on August 23, 2003,
S1 charged complainant with .36 units of LWOP. The agency contends that
S1 charged complainant .36 hours of LWOP because he worked part of the day
at one office and then failed to report to the main office as ordered to
complete his daily assignment. While complainant and Witness X claim that
S1 did not order complainant to report to the main office on August 23,
2003, we find complainant failed to show that the agency's articulated
explanation was a pretext for prohibited discrimination.
With regard to issues (3), (4), and (5), complainant claims that he was
subject to discrimination when he was forced to work UBBM mail outside
in inclement weather under a tent on December 9, 10, and 11, 2003.
S2 testified that processing undeliverable waste mail was one of the
duties the agency gave complainant to accommodate his restrictions.
S2 testified that processing undeliverable mail is occasionally performed
outside by various employees and for logistical purposes since on the
dates in question there was no other place that the UBBM mail could be
worked on which would not interfere with agency operations. We find
complainant failed to show that the assignment was given to him based
on his protected status.
With regard to issue (6), the record shows that complainant was charged
with annual leave on January 21, 2004, which was later converted to sick
leave after he brought in medical documentation to support the absence.
Moreover, the record shows that complainant was charged 30 minutes of
annual leave when he claimed to have worked through lunch. Specifically,
S2 testified that complainant was not authorized to waive his lunch.
S2 noted that all employees are required by law to take a lunch break
if they work over six hours. Complainant failed to show that the
agency's actions taken with regard to these incidents were the result
of discriminatory animus.
With regard to his claim of retaliation, the Commission agrees with
complainant's contention that his complaints to management, beginning
on July 10, 2003, that S1 was giving him assignments in violation of his
medical restrictions constituted protected EEO activity. Additionally,
we find complainant's September 22, 2003 initial contact with an agency
EEO Counselor constitutes protected activity. Similarly, while we note
that not all grievances are protected activity, we find complainant's
September 28, 2003 grievance, claiming that Station A management failed
to adhere to his medical restrictions constituted protected EEO activity.
Nevertheless, we find complainant failed to show that the agency's actions
at issue in this complaint were taken in reprisal for prior protected
EEO activity or were reasonably likely to deter him from engaging in
the EEO process.
Complainant also claimed that he was subjected to discriminatory
harassment between July 2003 and February 2004. We note the record
reveals that many employees at Station A were unhappy with the management
style of Supervisor A and in an August 19, 2003 letter to the Postmaster,
21 employees, including complainant, accused S1 of creating a hostile
work environment. However, we find complainant failed to show that she
was treated differently or subjected to harassment based on his protected
status.
Finally, complainant claimed that the agency improperly disclosed his
confidential medical information. Upon review of the record, we find
substantial evidence supports the AJ's finding that "due to a mailing
error, medical information about complainant's . . . foot condition was
sent to one of his colleagues." Specifically, the record contains a
letter dated October 8, 2003, addressed to the Acting Manager of Injury
Compensation from the Postmaster of the Berkeley Post Office. The subject
of the letter is complainant's CA-2 form submitted on September 23, 2003.
The letter notes complainant was diagnosed with left heel problem as
plantar fasciitis and notes complainant has an accepted claim of right
knee injury filed on April 25, 2001. The letter was delivered to the
cited colleague who informed complainant of her receipt of the letter.
EEOC regulations provide that information obtained during a medical
examination and inquiry regarding the medical condition or history
of any employee shall be treated as a confidential medical record.
29 C.F.R. � 1630.14(c). By its terms, this requirement applies to
confidential medical information obtained from "any employee," and is
not limited to individuals with disabilities. See Hampton v. United
States Postal Service, EEOC Appeal No. 01A00132 (April 13, 2000)
(citations omitted). Although not all medically-related information falls
within this provision, documentation or information of an individual's
diagnosis or symptoms is considered medical information that must be
treated as confidential except in those circumstances described in 29
C.F.R. Part 1630. See Forde v. United States Postal Service, EEOC Appeal
No. 01A12670 (October 9, 2003), request for reconsideration denied,
EEOC Request No. 05A40196 (February 5, 2004); ADA Enforcement Guidance:
Preemployment Disability-Related Questions and Medical Examinations
(October 10, 1995), at 22.
Accordingly, based on the agency's disclosure of information about
complainant's medical condition in the Postmaster's October 8, 2003 letter
(claim 7), we find that the agency has violated the Rehabilitation Act.
See 29 C.F.R. � 1630.14(c). Such a disclosure constitutes a per se
violation of the Rehabilitation Act. See Forde, EEOC Appeal No. 01A12670
(citing Valle v. United States Postal Service, EEOC Request No. 05960585
(September 5, 1997)).
CONCLUSION
We AFFIRM the portion of the agency's final action finding discrimination
in claims 1 - 6 and all Title VII bases for claim 7. We REVERSE the
agency's finding of no discrimination under the Rehabilitation Act for
claim 7 and we order the agency to provide the remedial relief specified
in the Order herein.
ORDER
The agency shall take the following remedial actions:
1. Within 180 days of the date this decision becomes final, the agency
shall provide EEO training to the person who was Postmaster of Station A
(at the time of the discrimination) focusing on the agency's obligation
under the Rehabilitation Act to keep medical information confidential.
2. Within 180 days of the date this decision becomes final, the agency
shall consider taking disciplinary action against the Postmaster
of Station A (at the time of the discrimination) for violating
the Rehabilitation Act. The agency shall report its decision to
the Commission. 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 reasons(s) for its decision
not to impose discipline.
3. Within 15 days of the date this decision becomes final, the agency
shall give complainant a notice of his right to submit objective evidence
(pursuant to the guidance given in Carle v. Department of the Navy,
EEOC Appeal No. 01922369 (January 15, 1993)), in support of his claim
for compensatory damages within 45 days of the date complainant receives
the agency's notice. The agency shall complete the investigation on
the claim for compensatory damages within 45 days of the date the agency
receives complainant's claim for compensatory damages. Thereafter, the
agency shall process the claim in accordance with 29 C.F.R. �1614.110.
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 (G0900)
The agency is ordered to post at its Station A Post Office in Berkeley,
California facility 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 (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/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 (K1208)
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 (M1208)
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), 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 (T0408)
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 (Z1008)
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 15, 2009
__________________
Date
1 Although the accepted dates for this issue were September 19-20, 2003,
it appears from the testimony at the hearing that the incident occurred
from September 18-20, 2003.
2 Despite complainant's contention to the contrary, we find the agency's
December 26, 2006 brief was timely filed. Moreover, even if we found
the agency's brief untimely and did not consider it, we would reach the
same conclusion in our decision.
3 For purposes of this decision, we do not address whether complainant
was a qualified individual with a disability.
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0120070258
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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