0120160975
09-22-2016
Sharonda M.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Sharonda M.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120160975
Hearing No. 4560-2014-0225X
Agency No. 200306572013102332
DECISION
On February 1, 2016, Complainant filed an appeal from the Agency's January 5, 2016, final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. For the following reasons, the Commission AFFIRMS the Agency's final order.2
ISSUES PRESENTED
Whether the Administrative Judge (AJ) properly issued a decision without a hearing finding that the Agency discriminated against, and subjected Complainant to a hostile work environment, based on reprisal for prior EEO activity when her managers accused her of prematurely returning a file; charged her leave on days when she was not on leave; did not allow her to rotate assignments; allegedly denied her overtime; issued her a proposed removal; gave her "unfair" assignments; did not promote her; charged her with absence without leave (AWOL) and leave without pay (LWOP); "doubled" her workload; accused her of filing a false police report; suspended her; placed her on a non-paid status; and notified her of her removal from the Agency.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as Medical Support Assistant (GS-5) at the Agency's John Cochran Veterans Affair Medical Center in St. Louis, Missouri. On September 27, 2012, the Agency posted a vacancy announcement for a few GS-6 positions in Complainant's unit. Complainant alleged that no one informed her about the announcement, and she did not apply for it because she did not learn of the vacancy until after a selection was made. Complainant's first line supervisor (S1) stated that other employees in the unit applied for the position; and an internal employee was selected for the promotion.
On October 4, 2012, Complainant arrived at work to find a patient file with a note from her second line supervisor (S2), asking that files be checked prior to being returned to the file room. Complainant then sent an email to a Human Resources Specialist (HRS), claiming that S2 was "physically attacking" her. The HRS referred the matter to the Agency's police. A detective (D1) requested an interview with Complainant, which was held in the Agency police conference room. Complainant stated to D1 that S2 did not touch her, but that she was verbally abusive. In his police report, D1 determined that no additional action was warranted.
On October 24, 2012, Complainant learned that she was charged leave on days when she was not on leave. Complainant sent an email to the HRS asking that she look into the matter. In the email, Complainant also stated that S1 was a "cruel and nasty person." The HRS requested an audit, and an error was found that Complainant was owed 8.5 hours, which was then corrected. On October 29, 2012, Complainant sent another email alleging that S2 and S3 were trying to provoke a fight with her, and that they were bullies. On November 9, 2012, Complainant told a coworker (C1) to "go to hell."
On November 14, 2012, Complainant learned that she would not be rotated to other sections because rotations for the unit were temporarily stopped. On November 19, 2012, Complainant was assigned to the scheduling office.
On December 27, 2012, Complainant sent an email stating that S1 would have to kill her "for everyone to wake up." On December 28, 2012, she sent another email alleging that S1 lied, is causing her harm, and sabotaging her.
On January 31, 2013, S3 issued Complainant a proposed removal for sending inappropriate emails; unprofessional behavior towards C1; failure to follow instructions when she left a meeting, despite S1 asking her to stay; and lack of candor for stating that S2 had physically assaulted her when she had not. S3 notified Complainant that the proposed removal was rescinded on February 1, 2013. Instead, Complainant was issued a proposed 14-day suspension on February 20, 2013.
On February 6, 2013, while Complainant was assigned to scheduling, she was asked to help at the front desk due to a staff shortage.
On February 21, and 22, 2013, Complainant called in sick, but only had three and a half hours of available sick leave, and was placed in an AWOL status for the remainder of the hours. On March 7, 2013, Complainant left a voicemail message for S1 stating that she was calling in sick. S1 saw that Complainant's time records showed eight hours of authorized absence for time related to an EEO complaint for that day. S1 contacted Complainant's third line supervisor (S3), who was the only one who could approve authorized absences. S3 informed S1 that Complainant did not inform her of a request for authorized absence. S1 recorded Complainant's time LWOP because Complainant had no available sick leave, and had not obtained pre-approval for the authorized absence.
On March 11, 2013, Complainant was instructed to schedule additional patients, move files, and cover the front desk when others took breaks. On March 13, 2013, S3 issued the decision upholding Complainant's 14-day suspension. In response, Complainant sent an email to S1, S2, S3, and the HRS in which she stated that their futures included the "removal" of one of their sons, and condemnation in purgatory. Complainant was instructed to leave the premises. On March 29, 2013, Complainant was placed in a non-paid status.
On May 6, 2013, S3 issued Complainant a proposed removal for failure to follow instructions. The letter stated that Complainant's March 13, 2013 email was inappropriate, not related to her duties, and against previous instructions to stop sending inappropriate emails. S3 also noted that Complainant had previously served two 14-day suspensions for failure to follow instructions. On June 4, 2013, the Medical Center Director upheld Complainant's removal, effective June 14, 2013.
On April 17, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of reprisal for filing eight prior EEO cases when:
1. on October 4, 2012, S2 accused her of returning files, without checking the dates, and the Agency's police removed her from her work area;
2. on October 24, 2012, she learned that she was charged leave on days that she was not on leave;
3. on November 14, 2012, she was not allowed to rotate to other sections, and was reassigned to scheduling;
4. from November 14, 2012, through January 18, 2013, S1 denied her overtime;
5. on January 28, 2013, she was issued a proposed removal, which was later rescinded;
6. on February 6, 2013, she was given unfair assignments, and denied overtime to complete the additional work;
7. on February 8, 2013, she was not promoted to a GS-6 Medical Support Assistant;
8. on February 21, and 22, 2013, she was charged AWOL;
9. on March 8, 2013, she requested sick leave, but was charged AWOL;3
10. on March 11, 2013, her workload "doubled," and she was not provided assistance to complete her work;
11. on March 13, 2013, S3 filed a false police report against her;
12. on March 13, 2013, S3 suspended her for fourteen days;
13. on March 29, 2013, she was placed on an indefinite unpaid status, and she had to surrender her badge and keys; and
14. on June 4, 2013, she was notified of her termination from the Agency.4
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission AJ. Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case (AJ1) granted the Agency's July 2, 2015, motion for a decision without a hearing and issued a decision without a hearing on December 18, 2015.
AJ1 noted that the Agency had determined that claims 6, through 13 were also independent claims of alleged discrimination, in addition to being part of Complainant's hostile work environment claim. AJ1 also noted that the previous Administrative Judge assigned to the case (AJ2) upheld the Agency's dismissal of claims 2, 3, and 4 as independent claims for being untimely during a pre-hearing conference.5 AJ2 also ruled that claims 13, and 14 were intimately connected with Complainant's appeal before the MSPB; and that this case would not address those claims.
AJ1 found that Complainant's case was appropriate for a decision without a hearing, and analyzed each of the incidents separately. For claim 1, AJ1 found that S2 had simply placed a reminder note on the file, and that Complainant had not shown any harm from receiving the note. Additionally, AJ1 found that it was undisputed that Complainant sent an email claiming that S2 had physically attacked her, and that it was reasonable that D1 would want to talk to her privately to investigate. AJ1 noted that Complainant was not arrested or otherwise prevented from leaving the police conference room.
In regards to claim 2, AJ1 found that Complainant had not provided evidence that the leave error was an intentional act on the part of anyone at the Agency. Moreover, AJ1 determined that Complainant was not harmed because she was later paid. For claim 3, AJ1 found that rotations were stopped for everyone, and that Complainant was not treated any differently than the other employees in the unit. For claim 4, AJ1 found that Complainant clarified that she was not denied overtime, but that she alleged that when she worked overtime, other employees were not assigned to help her. However, AJ1 noted that Complainant had not shown that anyone else was provided help with their work while working overtime.
In regards to claim 5, AJ1 found that Complainant was not harmed by the action. Complainant's managers stated that the proposal was issued prematurely, prior to review by Agency counsel, and that once the mistake was realized, the letter was rescinded. For claim 6, AJ1 found that Complainant was not singled out, and that others were asked to cover the front desk when they were short staffed.
For claim 7, AJ1 found that other employees in Complainant's unit applied for the position, and that the position was posted publicly for others to have been aware of the vacancy. AJ1 also noted that Complainant had not shown that the notice provided to her was different than what was provided to others. For claim 8, AJ1 found that other employees were also placed on AWOL when they did not have available leave; and that Complainant had not presented any evidence that she was treated differently. Regarding claim 10, AJ1 determined that others had to cover when the office was short staffed, and that Complainant had a backlog of work due to her recent absences.6
For claim 11, AJ1 initially noted that Complainant clarified that she was not alleging that S3 had filed a false police report, but that S3 accused her of filing a false police report. AJ1 then found that Complainant did file a false police report, and that S3 did not make an untrue statement. In regards to claim 12, AJ1 found that Complainant did not show that the events referenced in the suspension did not occur; or that others behaved in a similar manner, and were not disciplined. AJ1 concluded that Complainant had not established a prima facie case of reprisal discrimination; or shown that she was subjected to a hostile work environment because the incidents did not rise to the level of harassment.
The Agency subsequently issued a final order adopting AJ1's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant filed the instant appeal. On March 8, 2016, the Agency requested that the Commission affirm its final order adopting AJ1's finding of no discrimination.
CONTENTIONS ON APPEAL
On appeal, Complainant contests the fact that a decision was issued without her being present. Complainant also argues that she was not treated fairly by the Agency's counsel, who changed his statements; and that the "MSPB" judge abused her authority when she did not fully address Complainant's complaints.
The Agency argues that Complainant offered "nothing substantive" on appeal, and that the record supports AJ1's decision to issue a decision without a hearing, finding that Complainant was not subjected to reprisal discrimination or harassment.
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, � VI.B. (Aug. 5, 2015) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both 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 Chapter 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 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).
On appeal, Complainant opposes AJ1's decision because it was issued without the benefit of her presence. We note that Complainant responded to the Agency's Motion for Summary Judgment, but did not show that there were any material facts in genuine dispute. Upon review of the record, we find that AJ1 looked at the evidence in the light most favorable to Complainant, and properly issued a decision without a hearing.
Dismissal of claims
We affirm the dismissal of claims 2, 3, and 4 for untimely contact with an EEO counselor. EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered See Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent.
EEOC regulations provide that the Agency or the Commission shall extend the time limits when the individual shows that she was not notified of the time limits and was not otherwise aware of them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence she was prevented by circumstances beyond her control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. Ellis v. United States Postal Service, EEOC Request No. 01992093 (Nov. 29, 2000). In this case, Complainant initiated EEO counseling on March 13, 2013, and claims 2, 3, and 4 occurred outside of the 45-day deadline to contact an EEO Counselor. Complainant has not shown that the time limit should be waived. As such, we AFFIRM the dismissal of these claims as discrete acts of alleged discrimination; and we will only address them as a part of Complainant's harassment claim.
Additionally, we affirm AJ2's dismissal of claims 13 and 14. EEOC Regulation 29 C.F.R. � 1614.107(a)(4) states that a claim shall be dismissed if it has been raised in an appeal to the MSPB. The record shows that Complainant petitioned the Commission to review the MSPB's decision regarding her removal. Accordingly, we agree that claims 13 and 14 should have been dismissed because they involved matters that were raised in her MSPB appeal; and we will only address them as a part of Complainant's harassment claim.
Disparate Treatment
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
Assuming, arguendo, that Complainant had established a prima facie case of reprisal discrimination; we find that the Agency articulated legitimate, non-discriminatory reasons for its actions, in addition to the reasons noted by AJ1. For claim 6, S2 stated that everyone in the unit had to help out in covering other areas, when needed. For claim 7, S1 stated that the vacancy announcement was posted on USAJOBS, and that three of Complainant's coworkers applied. Since Complainant's coworkers were aware of the announcement, S1 stated that she thought Complainant was aware as well.
In regards to claim 8, S1 stated that she placed Complainant on AWOL because she had exhausted her sick leave, and did not have enough available. Additionally, for claim 9, S1 stated that she placed Complainant on LWOP because she still did not have enough sick leave; and that she did not have the authority to grant the authorized absence. S1 stated that she believed that since Complainant had not properly requested the authorized absence in advance, Complainant simply called in sick. In response to claim 10, S1 stated that she did not double Complainant's workload, but that since she had recently called in sick, her work got backlogged. S3 also stated that while other staff members picked up some of Complainant's duties when she was absent, there was still some work "left over" for Complainant when she returned.
For Claim 11, S3 stated that she was aware that Complainant's false allegation against S2 led to a police report; this incident was included in Complainant's suspension. Regarding claim 12, S3 stated that she issued the suspension for Complainant's inappropriate conduct towards management and a coworker; failure to follow instructions; and lack of candor.
Complainant made bare assertions that her management officials discriminated against her, which are insufficient to prove pretext, or that their actions were discriminatory. As such, we find that the Agency did not discriminate against Complainant based on reprisal for her prior EEO activity when it gave her "unfair" assignments; did not promote her; placed her on an AWOL and LWOP status; "doubled" her workload; accused her of filing a false police report; and issued her a 14-day suspension.
Harassment
As discussed above, we found that Complainant did not establish a case of discrimination based on reprisal for her prior EEO activity for claims 6 through 12. Further, we conclude that a case of harassment is precluded based on our finding that Complainant failed to establish that any of these actions taken by the Agency were motivated by retaliation. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000). As such, only claims 1 through 5, 13, and 14 remain for Complainant's harassment allegation.
Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of the Complainant's employment. See EEOC Notice No. 915.002, Enforcement Guidance on Harris v. Forklift Systems, Inc., at 3 (Mar. 8, 1994). To establish a claim of harassment a Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (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 Humphrey v. United States Postal Service, EEOC Appeal No. 01965238 (Oct. 16, 1998).
In assessing whether the Complainant has set forth an actionable claim of harassment, the conduct at issue must be viewed in the context of the totality of the circumstances, considering, inter alia, the nature and frequency of offensive encounters and the span of time over which the encounters occurred. See 29 C.F.R. � 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual Harassment, N-915-050, No. 137 (March 19, 1990); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997). Generally, "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment." Kozak v. United States Postal Service, EEOC Request No. 01A63021 (Aug. 23, 2006); Battle v. United States Postal Service, EEOC Request No. 0120083387 (Feb. 4, 2010). Such conduct "must be both objectively and subjectively offensive, [such] that a reasonable person would find [the work environment to be] hostile or abusive, and ... that the victim in fact did perceive to be so." Id.
In regards to Complainant's allegation that she was subjected to a hostile work environment, we find that, even assuming, arguendo, that the events in claims 1 through 5, 13, and 14 occurred as Complainant described and were unwanted, she has not shown that the conduct occurred because of her protected class. We find that many of the instances of alleged harassment were related to Complainant's job duties and workplace conditions, which also applied to the other employees who held the same position. Additionally, Complainant has not shown that the conduct had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment. Accordingly, we find that Complainant has not shown that the conduct was sufficiently severe or pervasive resulting in a hostile work environment based on reprisal for prior EEO activity.
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 AJ1's decision: (1) affirming the dismissal of claims 2, 3, 4, 13, and 14; and (2) finding that the Agency did not discriminate, or subject Complainant to a hostile work environment, based on reprisal for prior EEO activity when her managers accused her of prematurely returning a file; charged her leave on days when she was not on leave; did not allow her to rotate assignments; allegedly denied her overtime; issued her a proposed removal; gave her "unfair" assignments; did not promote her; charged her with AWOL and LWOP; "doubled" her workload; accused her of filing a false police report; suspended her; placed her on a non-paid status; and notified her of her removal from the Agency.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
__9/22/16________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 We note that Complainant has an open civil suit against the Agency in the US District Court for the Eastern District of Missouri, Case No. 4:16-cv-00424 HEA. However, it is unclear if the civil action contains the identical issues raised in the instant appeal.
3 We note that while Complainant alleges that she was charged AWOL, she was recorded as LWOP for that day.
4 Complainant appealed her removal to the Merit Systems Protection Board (MSPB), which upheld her removal, and found no discrimination. Complainant petitioned the Commission to review the MSPB decision. The Commission concurred with the MSPB's finding of no reprisal discrimination in EEOC Petition No. 0320140070.
5 AJ2 also dismissed another untimely claim in which Complainant alleged that on March 9, 2012, she was assaulted by a coworker.
6 AJ1 inadvertently failed to address claim 9. The record, however, has been developed on this matter and the Commission will address the Agency's explanation for its actions below.
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