0120100555
02-09-2012
Robert S. Mitchell, Complainant, v. Hilda L. Solis, Secretary, Department of Labor, Agency.
Robert S. Mitchell,
Complainant,
v.
Hilda L. Solis,
Secretary,
Department of Labor,
Agency.
Appeal No. 0120100555
Hearing No. 450-2008-00343X
Agency No. 03-06-141; 04-06-020; 05-06-109
DECISION
On November 17, 2009, Complainant filed an appeal from the Agency’s
October 8, 2009, 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., 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. The Commission deems the appeal timely and
accepts it pursuant to 29 C.F.R. § 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Regional Safety and Occupational Health Manager at the Agency’s
Office of the Assistant Secretary for Administration and Management
facility in Dallas, Texas.
The record indicated that Complainant filed first complaint, Agency
No. CRC-03-06-141 (Complaint #1), on August 12, 2003, Complainant alleged
that he was subjected to discrimination and a hostile work environment
on the bases of sex (male), disability (Post Traumatic Stress Disorder,
carpal tunnel in his right wrist, right shoulder workplace injury,
left bicep tendon injury, cervical spine degeneration, lumber spine
degeneration, and spina bifida defect in lumber spine), age (58), and
in reprisal for prior protected EEO activity1 arising under Title VII,
the ADEA and the Rehabilitation Act when his supervisor (Supervisor)
took negative actions against him, including but not limited to:
1) Informing Complainant that she wanted him out of the work place and
removed from federal service;
2) Moving complainant out of his large corner office and moving a
lower-graded employee into it;
3) Requesting that GSA withdraw his parking space accommodation;
4) Taking away his agency laptop;
5) Removing him from flexi-time and flexi-place; and
6) Denying his request for a reasonable accommodation in the form of a
reassignment to another supervisor.
Complainant filed a second EEO complaint, Agency No. CRC-04-06-020
(Complaint #2), filed on December 3, 2003, Complainant claimed that the
agency had continued to harass and discriminate against him on the same
bases. Complaint #2 was consolidated with Complaint #1, to include the
following actions engaged in by the Supervisor:
7) Requiring him to return to work on September 8, 2003, from sick leave
against the advice of his physician;
8) Requiring him to use two hours of annual leave for time spent to
complete his timesheets on September 8, 2003;
9) Denying him an opportunity, on September 11, 2003, to take a downgraded
position as an accommodation for his disabilities by announcing a position
at the GS 7/9 level as opposed to the 11/12 level;
10) Making "veiled threats" on September 19 and October 1-2, 2003,
concerning accusations that Complainant and a subordinate employee
(Co-worker) were committing fraud in the submission of travel vouchers;
and
11) Introducing another employee as the DOL Safety Officer at a Federal
Protective Service security meeting on October 10, 2003, instead of
Complainant, among numerous other actions.
The agency conducted an investigation into Complaints #1 and #2, and
Complainant requested a hearing before an EEOC Administrative Judge
(AJ) on November 14, 2004. On April 29, 2005, Complainant withdrew his
hearing request and requested a final agency decision on the record.
On June 17, 2005, Complainant filed a third EEO complaint, Agency
No. CRC-05-06-109 (complaint #3), alleging that he was subjected to
discrimination and a hostile work environment on the bases of sex (male),
disability, age (60), and in reprisal for prior protected EEO activity
arising under Title VII, the ADEA and the Rehabilitation Act when:
12) In February 2005, Complainant indicated that he needed an exemption
from traveling by plane or by car to Denver, Colorado, due to his PTSD. On
March 11, 2005, the Supervisor told Complainant that if his accommodation
was approved, she would have him removed from federal service.
13) On April 22, 2005, the Supervisor failed to attend Complainant’s
farewell party.
14) On April 22, 2005, neither the Supervisor nor anyone from the Agency
presented Complainant with any award for his service or achievement for
his service with the Agency.
15) On April 26, 2005, the Supervisor ordered Complainant to take a one
day travel to Denver knowing that his retirement was to be effective
April 30, 2005, and that he had to participate in his EEOC hearing on
May 2-3, 2005.
16) Effective April 30, 2005, he was constructively discharged when
he was forced to retire from federal service in order to avoid further
harassment and a hostile work environment, and as a result of the agency's
failure to accommodate his disabilities.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation on Complaint #3 and provided
a consolidated FAD on Complaint #1, 2, and 3. In its decision dated
July 6, 2007, the Agency provided Complainant with appeal rights to the
Merits Systems Protection Board (MSBP), not EEOC.
To the extent Complainant alleged he was denied a reasonable
accommodation, the Agency found that Complainant failed to establish that
he was covered under the Rehabilitation Act. Therefore, the Agency found
no discrimination as to the claims of denial of reasonable accommodation,
disparate treatment or harassment under the Rehabilitation Act. As to
Complainant’s claim of harassment or hostile work environment,
the Agency found that Complainant failed to establish his claims.
The Agency noted that Complainant alleged that the harassment began as
soon as the Supervisor arrived. The AJ found that the record did not
establish that all the events alleged by Complainant actually occurred
as he alleged. Furthermore, the Agency indicated that some events, such
as incident (1) occurred based on the actions of the General Services
Administration and not the Agency or the Supervisor. In addition,
the Agency, taking the events as a whole, determined that Complainant
did not allege events which were severe or pervasive enough to create
a hostile work environment. The Agency found that it had reasons for
the actions taken against Complainant and that he had not shown that the
alleged events occurred due to his sex, age, and/or protected activity.
Finally, the Agency held that Complainant did not show that his retirement
constituted involuntary discharge.
From the Agency’s July 2007 decision, Complainant filed both an
appeal with EEOC and the MSBP. The EEOC appeal was docketed as EEOC
Appeal No. 0120073560. In an Initial Decision issued on April 14,
2008, on MSPB Docket number DA-0752-07-0509-1-1, an MSPB AJ dismissed
complainant's MSPB appeal regarding his claimed involuntary retirement
for lack of jurisdiction. Based on the dismissal from MSPB, Complainant
was issued a notice of his right to request a hearing before an EEOC
Administrative Judge (AJ) solely on Complaint #3. Complainant timely
requested a hearing and the AJ held a hearing on March 16, 2009, and
issued a decision on August 24, 2009. In her decision, the AJ found
that, as to Complainant’s claim of denial of reasonable accommodation,
the Supervisor denied stating that she would have Complainant removed.
The AJ found that the Supervisor indicated that travel was an essential
function of Complainant’s position. Specifically, the AJ found that
the Supervisor wanted to have Complainant attend the Regional Safety and
Health quarterly meetings because the Denver Region was managed out of
the Dallas office and it had requested more attention. The Supervisor
believed that Complainant’s attendance at the meetings in person
would provide the region was assurances that although he was located
in Dallas, he was available and accessible to the Denver Region. As to
the farewell party and lack of presentation of awards or achievements,
the AJ noted that the Supervisor was at an out-of-town commitment and
did not obtain an award for Complainant based on his performance issues.
Finally, as to Complainant’s claim of constructive discharge, the AJ
found that Complainant and the Supervisor had incongruent managerial
styles and personality conflicts which Complainant failed to demonstrate
were based on discrimination or unlawful retaliation. Therefore, the
AJ concluded that Complainant did not show that he was subjected to
harassment which resulted in his retirement.
Subsequently, in October 2009, the Agency issued a final order adopting
the AJ’s finding that Complainant failed to prove that the Agency
subjected him to discrimination as alleged. Complainant filed an appeal
upon receipt of the Agency’s adoption of the AJ’s decision.
The Agency failed to inform the Commission that Complaint #3 had already
been forwarded to the AJ. Without this additional information, the
Commission issued a decision on EEOC Appeal No. 0120073560, dismissing
the appeal. Mitchell v. Dep’t of Labor, EEOC Appeal No. 0120073560
(September 17, 2009). In the Commission’s decision, we found that
the Complaint #1, 2, and 3 were no longer mixed and issued notice to
the parties that complaints should be remanded to the Agency. Further,
the Agency should provide Complainant with the right to request a hearing
before an AJ. Id.
Based on the Commission’s decision in September 2009, on November
17, 2009, the Agency issued Complainant a letter noting that he had
already had a hearing on Complaint #3 and a final order which was
appealed. Further, the Agency stated that should Complainant seek
further information on his appeal rights regarding Complaint #1 and #2,
Complainant should contact the EEOC’s Office of Federal Operations. In
the same letter, the Agency intimated that Complainant had filed a civil
action on the same claims raised in the Complaint #2.
On appeal, Complainant asserted that the Agency failed to provide
Complainant with the opportunity to request a hearing on Complaint#1
and #2 as required by the Commission’s decision in EEOC Appeal
No. 0120073560. As such, Complainant requested that the Agency comply
with the Commission’s previous decision and provide him with its
investigation of Complaint #1 and #2 and allow him to request a hearing.
The Agency responded to the appeal by asserting that Complainant has
already received the right to a hearing in Complaint #1 and #2 which he
exercised and withdrew in April 2005.
ANALYSIS AND FINDINGS
As an initial matter, we find that Complainant is not entitled to a
hearing on Complaint #1 and #2. The Agency correctly indicated and
the record confirmed that Complainant was provided with an opportunity
to request a hearing before the AJ. Complainant exercised that right
and withdrew his request. As such, we do not find that Complainant is
entitled to a hearing on Complaint #1 and #2.
Instead, we find that the Agency should have issued a Final Decision
on Complaint #1 and #2 providing appeal rights to the Commission.
The Agency failed to do so. Further, a review of the hearing transcript
for Complaint #3 reveals that the Agency believed that Complaint #1
and #2 were under review by the Commission in EEOC Appeal 0120073560.
The record before the Commission in the instant appeal contains a copy of
the Agency’s Final Decision addressing the merits of Complainant’s
claims of discrimination raised in Complaint #1 and #2, albeit with the
wrong appeal rights. In addition, the record provided to the Commission
includes a copy of the Report of Investigations for all three complaints
of discrimination. Having the complete records for all three complaints,
for the sake of administrative economy, the Commission shall review and
issue a consolidated decision on Complaint #1, #2, and #3.2
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. Nat’l Labor Relations Bd.,
340 U.S. 474, 477 (1951) (citation omitted). A finding regarding
whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's
conclusions of law are subject to a de novo standard of review, whether
or not a hearing was held. An AJ’s credibility determination based
on the demeanor of a witness or on the tone of voice of a witness will
be accepted unless documents or other objective evidence so contradicts
the testimony or the testimony so lacks in credibility that a reasonable
fact finder would not credit it. See EEOC Management Directive 110,
Chapter 9, at § VI.B. (November 9, 1999). This standard shall apply
to the findings by the AJ in reference to events raised in Complaint #3.
As to Complaint #1 and #2, this is an appeal from a decision issued
without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's
decision is subject to de novo review by the Commission. 29 C.F.R. §
1614.405(a). See Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (November 9, 1999)
(explaining that the de novo standard of review “requires that
the Commission examine the record without regard to the factual and
legal determinations of the previous decision maker,” and that EEOC
“review the documents, statements, and testimony of record, including
any timely and relevant submissions of the parties, and . . . issue its
decision based on the Commission’s own assessment of the record and
its interpretation of the law”).
Upon review of the record, the Commission finds that Complainant alleged
three separate claims of discrimination, namely a denial of reasonable
accommodation, a hostile work environment, and constructive discharge.
Denial of Reasonable Accommodation
Under the Commission's regulations, an agency is required to make
reasonable accommodation to the known physical and mental limitations
of an otherwise qualified individual with a disability unless the
agency can show that accommodation would cause an undue hardship. 29
C.F.R. § 1630.9. For the purposes of analysis, we assume Complainant
is an individual with a disability. 29 C.F.R. § 1630.2(g)(1).
The record showed that Complainant requested the following accommodations:
(3) the Supervisor requested that the GSA withdraw Complainant’s
parking space accommodation; (6) the Supervisor denied his request for
a reassignment to another supervisor; (9) providing Complainant with
a downgraded position as a form of reasonable accommodation; and (12)
the Supervisor denied Complainant’s request for an exemption from
traveling by car or by plane.
As for claim (3), the Supervisor averred that she was not aware of
any accommodation being provided to Complainant by GSA. As such, the
Supervisor asserted that she did not withdraw Complainant’s parking
space accommodation. We note that Complainant failed to provide any
support to this claim outside of his bald assertion that the Supervisor
spoke to GSA about his parking space. Finding no evidence to support
Complainant’s assertion, we cannot find that the Agency denied
Complainant a reasonable accommodation with respect to the parking space.
We further note that the space is provided by GSA, not the Agency.
Therefore, we find no violation of the Rehabilitation Act.
As to claim (6), the Supervisor indicated that Complainant made a request
for a reasonable accommodation on June 30, 2003. Complainant requested
for a reassignment to another position. A letter from Complainant’s
physician shows that Complainant required a reduction in stress at the
workplace. Further, the record insinuated that Complainant’s stress
in the workplace related to the Supervisor. The Commission guidance
states that, in most circumstances, an employer does not need to change a
person's supervisor as a form of reasonable accommodation. See Enforcement
Guidance: Reasonable Accommodation and Under Hardship Under the Americans
with Disabilities Act, (Oct. 17, 2002), Question 33. As such, we find
that the Agency was not obligated to provide Complainant with a new
supervisor as a request for a reasonable accommodation.
Complainant asserted in claim (9) that the Agency failed to provide
him with a reassignment. Complainant indicated that on September 11,
2003, the position Complainant sought as a reassignment was posted as a
GS-7/9 rather than a GS-11/12 position. We note that in his affidavit,
Complainant indicated that he sought this reassignment to get away from
the Supervisor. As noted above, we find that the Agency was not obligated
to provide Complainant with this reassignment to a new supervisor.
As such, we find that Complainant has not shown that the denial of the
reassignment was a violation of the Rehabilitation Act.
In claim (12), Complainant requested an exemption from travel by car
or by plane on February 9, 2005. Complainant indicated that he had
increased difficulty flying aboard commercial aircraft for fear of
terrorist actions or faulty equipment. Further, due to his medications,
Complainant was unable to drive for long distances.
We note that Complainant also must show that he is a “qualified”
individual with a disability within the meaning of 29 C.F.R. §�
�1630.2(m). 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). With respect
to Complainant’s request, the Supervisor indicated that Complainant was
required to take a trip to Denver in April 2005. The Supervisor averred
that the Denver Region was managed out of the Dallas office and required
more attention. As such, she required Complainant to physically attend
the Regional Safety and Health quarterly meeting. She further noted that
the Denver office had lost their manager and required a visible presence
so that the office did not feel disregarded. As such, the Supervisor
found that Complainant’s presence was necessary. We note that the AJ
found that the record supported the Supervisor’s assertions. Therefore,
the Agency found that Complainant was required to attend the meeting in
Denver and Complainant was no longer qualified for his position.
Hostile Work Environment
It is well-settled that harassment based on an individual’s disability,
age, sex, and prior EEO activity is actionable. See Meritor Savings
Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim
of harassment under those bases, the complainant must show that:
(1) he is a qualified individual with a disability covered under the
Rehabilitation Act and/or engaged in prior EEO activity; (2) he was
subjected to unwelcome conduct; (3) the harassment complained of was
based on his disability and/or prior EEO activity; (4) the harassment
had the purpose or effect of unreasonably interfering with his work
performance and/or creating an intimidating, hostile, or offensive
work environment; and (5) there is a basis for imputing liability to
the employer. See Flowers v. Southern Reg’l Physician Serv. Inc.,
247 F.3d 229 (5th Cir. 2001); see also Fox v. General Motors Corp., 247
F.3d 169 (4th Cir. 2001). 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 (March 8, 1994). As noted above, for the purposes
of analysis, we assume Complainant is an individual with a disability.
In the three complaints, Complainant raised several events in support of
his claim of a hostile work environment. We note that in his affidavits,
Complainant indicated that he and the Supervisor have had a volatile
history based on several bases including his age, parental status,
and veteran status. He averred that from October 2001 to the time of
his retirement, the Supervisor denied funds for equipment and supplies
which negatively impacted his ability to accomplish his assigned duties.
Further, Complainant stated that she took away his laptop so that he
could no longer telework and moved him out of his large corner office.
Complainant indicated that this decision created stress for him and
affected his ability to care for his son before and after school.
In addition, Complainant argued that the Supervisor denied his request for
use of fund to provide light sticks for evacuations and training funds.
In September 2003, Complainant indicated that he was forced to return
to work following surgery and to complete time sheets as requested by
the Supervisor. Complainant averred that he was asked to personally
complete the sheets as a form of harassment. Complainant also noted
that the Supervisor required him to provide medical documentation to
support his leave or he would be charged with Absent without Leave
(AWOL). He summarily asserted that the Supervisor made threats that
he and the Co-Worker were committing fraud in the submission of travel
vouchers. Complainant indicated that in October 2003, at a meeting
with Federal Protective Service which Complainant did not attend, the
Supervisor introduced another employee at the Agency’s Safety Officer.
Complainant argued that he was the liaison for the Federal Protective
Service. Subsequently, in 2005, Complainant indicated that the Supervisor
did not attend Complainant’s farewell party, no one presented him with
any award at the party, and he was required to attend a meeting in Denver.
The Supervisor responded the events raised by Complainant. She denied
that she subjected Complainant to a hostile work environment. She noted
that she moved Complainant from his corner office so that the Agency
could move another employee into that space. The new employee required
the corner suite because he needed access to the Regional Administrator
which Complainant’s position did not required the same level of
communication. The Supervisor noted that Complainant was subject to the
same procedures as all other employees regarding laptops. The Supervisor
noted that employees were not permanently assigned laptops however, he
could have checked out available laptops for flexiplace and travel. As
to Complainant’s use of leave and flexiplace, the Supervisor noted
that Complainant had a history of failing to follow directions and
established Agency policies concerning time and attendance. Due to
Complainant’s failure to follow directions, Complainant was issued a
letter of reprimand on May 16, 2003, and a counseling memo on February
21, 2003, for discrepancies in his timesheets.
As to events raised in Complaint #2, the Supervisor averred that
Complainant’s physician note released him to work on September 4, 2003.
By email, Complainant informed the Supervisor that he would be returning
to work on September 8, 2003. She denied that she required Complainant to
return prior to the physician’s release. She also required Complainant
to do his timecards when he returned upon his request and noted that the
timecards were late for the pay period. As to the “veiled threat,”
the Supervisor noted that the Co-Worker claimed over $90 in dry cleaning
and laundry expenses for a trip to Denver. She explained to the Co-Worker
and Complainant that these expenses were not appropriate. She informed
her whole staff that they needed to be judicious with their travel plans
and expenses using the laundry expenses as an example. Finally as to
the other employee at the meeting with FPS, the Supervisor noted that
the other employee would represent the Agency to work with FPS and GSA
regarding emergency management issues.
The AJ found as to the events raised in Complaint #3, that the Supervisor
did not attend Complainant’s farewell party because she had an
out-of-town commitment and could not avoid the scheduling conflict.
Due to the issues regarding Complainant’s performance, the AJ determined
that it was not a surprise that the Supervisor did not nominate him
for a special certificate or recognition. Finally, as noted above, the
Supervisor required Complainant’s attendance at the quarterly meeting
in Denver. The AJ determined that Complainant and the Supervisor had
“incongruent managerial styles and personality conflicts.” The AJ
found that Complainant failed to show that the alleged events occurred
because of discrimination and/or reprisal.
Upon review of the record, we find that Complainant has not shown that the
events alleged occurred because of his protected bases. As noted above,
the Supervisor provided reasons for the events raised by Complainant.
As such, we find that the Agency’s final decision dated July 5, 2007,
and the AJ’s decision correctly found Complainant failed to show
that the events occurred because of his age, sex, alleged disability,
and prior EEO activity. Accordingly, we find that Complainant has not
established his claim of a hostile work environment.
Constructive Discharge
The central question in a constructive discharge case is whether
the employer, through its unlawful discriminatory behavior,
made the employee's working conditions so difficult that any
reasonable person in the employee's position would feel compelled
to resign. Carmon-Coleman v. Dep't of Def., EEOC Appeal No. 07A00003
(Apr. 17, 2002). The Commission has established three elements which
Complainant must prove to substantiate a claim of constructive discharge:
(1) a reasonable person in Complainant's position would have found
the working conditions intolerable; (2) conduct that constituted
discrimination against Complainant created the intolerable working
conditions; and (3) Complainant's involuntary resignation resulted from
the intolerable working conditions. See Walch v. Dep't of Justice, EEOC
Request No. 05940688 (Apr. 13, 1995). As noted above, the Commission
found that Complainant failed to show that the alleged events constituted
discrimination. Therefore, we conclude that Complainant has not shown
that he was subjected to constructive discharge.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the
Agency’s final decision and final order finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this
case if the Complainant or the Agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party’s timely request for reconsideration. See 29
C.F.R. § 1614.405; Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
77960, Washington, DC 20013. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. § 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official Agency
head or department head, identifying that person by his or her full
name and official title. Failure to do so may result in the dismissal
of your case in court. “Agency” or “department” means the
national organization, and not the local office, facility or department
in which you work. If you file a request to reconsider and also file a
civil action, filing a civil action will terminate the administrative
processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time limits
as stated in the paragraph above (“Right to File a Civil Action”).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 9, 2012
__________________
Date
1 We note that Complainant also alleged discrimination on the basis
of parental status (parent of a school-aged child). With respect
to Complainant's parental status as a basis, the Commission has
no jurisdiction over claims of martial status and parental status
discrimination. The Commission has authority over federal sector
complaints of discrimination on the basis of race, color, religion, sex,
national origin, age, disability of reprisal. See 29 C.F.R. §1614.106(a);
Lee v. U.S. Postal Serv., EEOC Appeal No. 01965341 (September 4, 1993).
2 The Commission also notes that Complainant filed a civil action in
U.S. District Court, Northern District of Texas, on December 28, 2007.
A review of the civil action complaint shows that Complainant appealed
the Commission’s decision in EEOC Appeal No. 0120063620 issued on
September 25, 2007, regarding additional complaints of discrimination
not raised in the instant matter. Civil Action No. 3:07-CV-2168-G
was administratively closed so that the parties may file to reopen the
matter without prejudice. In Complainant’s motion, he asserted that he
had matters still open with the Commission which, once EEOC issued its
decision; he could consolidate all the matters into one civil action.
Therefore, we find Complainant has not raised the claims raised herein
in a civil action.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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